According to the CJEU summary:

“In a preliminary ruling, the Court, sitting in Grand Chamber formation, rules on the limits of the power, provided for Member States in the recast Asylum Procedures Directive to designate third countries as safe countries of origin and on the scope of the review of such a designation by the court hearing an appeal against a decision rejecting an application for international protection lodged by a third-country national from a country designated as such.

On 9 February 2022, CV, a Moldovan national, filed an application for international protection in the Czech Republic. In support of his application, he cited, first, the threats he faces in Moldova from individuals whom the police authorities had allegedly failed to identify and, second, the invasion of Ukraine by the Russian Federation. By a decision of 8 March 2022, the Ministerstvo vnitra České republiky (Ministry of the Interior of the Czech Republic) rejected that application as manifestly unfounded, on the grounds, inter alia, that the Czech Republic considers the Republic of Moldova, with the exception of Transnistria, to be a safe country of origin, without CV having been able to demonstrate that this would not apply in his particular case.

CV challenged this decision before the Krajský soud v Brně (Regional Court, Brno, Czech Republic). First, that court has doubts as to whether a third country ceases to meet the criteria to be designated as a safe country of origin when it decides, as the Republic of Moldova did first because of its energy crisis and then because of the invasion of Ukraine by the Russian Federation, to invoke the right of derogation from the obligations arising from the European Convention for the Protection of Human Rights and Fundamental Freedoms. Second, it questions whether the European Union law precludes a Member State from designating a third country as a safe country of origin, with the exception of certain parts of its territory. Thirdly, it questions the extent of the control of the Member State for which it is responsible for exercising with regard to such a designation, taking into account, in particular, the possibility of processing applications for international protection lodged by third-country nationals designated as safe countries of origin under an accelerated procedure and of declaring them, where appropriate, as manifestly unfounded.

Assessment of the Court

First, the Court considers that a third country does not cease to meet the criteria for being designated as a safe country of origin, within the meaning of Article 37 of the recast APD, solely because it invokes the right of derogation provided for in Article 15 of the ECHR. Indeed, apart from the guarantees surrounding the exercise of that right, it cannot be inferred from such an derogation either that that third country has actually taken measures which have the effect of derogating from the obligations laid down in that convention or, if so, what are the nature and extent of the derogating measures adopted.

The Court nevertheless observes that such a request for derogation must lead the competent authorities of the Member State which has designated the third country concerned as a safe country of origin to assess whether such a designation should be maintained. Indeed, Article 37(2) of the recast APD requires Member States to regularly review the situation in third countries designated as safe countries of origin, since the circumstances giving rise to a presumption of the safety of applicants for international protection in a given country of origin are, by their nature, subject to variation. That requirement for regular review also covers the occurrence of significant events, in that, by reason of their importance, they are likely to affect the ability of a third country designated as a safe country of origin to continue to meet the criteria set out, for that purpose, in Annex I to that directive, and thus to be presumed to be able to guarantee the safety of applicants. However, the invocation of the right of derogation provided for in Article 15 of the ECHR constitutes such an event, given that it cannot be excluded that derogating measures affecting fundamental rights are incompatible with the criteria provided for in Annex I to the recast APD. Furthermore, such an invocation reveals, in any event, a significant risk of a significant change in the way in which the rules on rights and freedoms are applied in the third country concerned.

Secondly, the Court states that Article 37 of the recast APD precludes a third country from being designated as a safe country of origin where certain parts of its territory do not satisfy the substantive conditions for such designation, set out in Annex I to that directive.

This is confirmed, in particular, by the origins of this provision. Indeed, the power of a Member States to designate, for the purposes of examining applications for international protection, a part of the territory of a third country as safe was granted to Member States by Directive 2005/85, in particular by Article 30 thereof. This power no longer appears in the article that replaced it, namely Article 37 of Directive 2013/32. The intention to delete is clear from the very text of the European Commission proposal that gave rise to Directive 2013/32, where that power was explicitly deleted. Moreover, such an intention is confirmed by the detailed explanation of this proposal, which expressly states the intention to abolish the faculty concerned and the consequence resulting from this, namely that it is now required that the material conditions for such a designation be fulfilled for the entire territory of the third country concerned.

Furthermore, the objectives pursued by Directive 2013/32 – which aims to ensure that applications for international protection are processed ‘as expeditiously as possible, without prejudice to the carrying out of an appropriate and exhaustive examination’ – do not preclude such a consequence. In so far as the EU legislature seeks to ensure, through that directive, an examination of applications for international protection that is both expeditious and exhaustive, it is for it, in the exercise of its discretion, to balance those two objectives when determining the conditions under which Member States may designate a third country as a safe country of origin. The absence of an option for Member States to exclude part of the territory of a third country for the purposes of such a designation reflects this balancing exercise and the choice of that legislature to favour an exhaustive examination of applications for international protection which have been lodged by applicants whose country of origin does not satisfy, for its entire territory, the substantive conditions set out in Annex I to that directive. If Regulation 2024/1348, which repeals Directive 2013/32 with effect from 12 June 2026, reintroduces such an option, it is the prerogative of the Union legislature to reverse that choice, by carrying out a new balancing exercise. Furthermore, it must be noted that the fact that the legal regime introduced for that purpose by that regulation is different from that provided for by Directive 2005/85 supports the interpretation that the EU legislature did not provide for that option in Directive 2013/32.

Finally, thirdly, the Court holds that, where a court is ruling in an appeal against a decision rejecting an application for international protection examined under the special regime applicable to applications lodged by applicants from third countries designated as safe countries of origin, that court must raise, on the basis of the evidence in the file and that brought to its attention during the procedure before it, a breach of the substantive conditions for such designation, set out in Annex I to Directive 2013/32, even if that breach is not expressly invoked in support of that appeal.

Indeed, Article 46(3) of Directive 2013/32 states that the court before which the decision on the application for international protection in question is challenged shall carry out ‘a full and ex nunc examination of both the facts and the legal issues, including, where appropriate, an examination of the international protection needs.’ The words ‘where appropriate’ in that sentence highlight the fact that the full and ex nunc examination incumbent upon the court may concern the procedural aspects of an application for international protection. However, the designation of a third country as a safe country of origin falls within those procedural aspects in the sense that it is capable of having implications for the examination procedure relating to such applications.

In this case, the rejection decision was based on the fact that CV is from the Republic of Moldova, which the Czech Republic has designated as a safe country of origin, with the exception of Transnistria. Thus, the designation of that third country as a safe country of origin constitutes one of the elements of the file brought to the attention of the referring court and which it is called upon to hear in the action against that decision. It must be concluded that, in such circumstances, even if the applicant in the main proceedings has not expressly invoked it, a possible breach of the rules laid down by Directive 2013/32 for the purposes of such a designation with a view to subjecting the procedure for examining an application for international protection to the special regime constitutes a legal aspect which must be considered by the referring court must in the context of the full and ex nunc examination required by Article 46(3) of that directive.

The CJEU ruled in Grand Chamber formation that:

-  Article 37 of the recast APD, read in conjunction with Annex I thereto, should be interpreted as meaning that a third country does not cease to meet the criteria for being designated as a safe country of origin solely because it invokes the right to derogate from the obligations laid down in the European Convention for the Protection of Human Rights and Fundamental Freedoms, pursuant to Article 15 of that Convention, the competent authorities of the Member State which made such a designation having to assess whether the conditions for implementing that right are such as to call that designation into question.

- Article 37 of the recast APD should be interpreted as meaning that it opposes to the designation of a third country as safe when certain parts of its territory do not satisfy the material conditions for such a designation, as mentioned in Annex I of this directive.

-  Article 46(3) of the recast APD, read in the light of Article 47 of the EU Charter should be interpreted as meaning that where a court is seized of an appeal against a decision rejecting an application for international protection examined under the special regime applicable to applications lodged by applicants from third countries designated, in accordance with Article 37 of that Directive, as safe countries of origin, that court must, by way of the full and ex nunc examination required by Article 46(3), raise, on the basis of the evidence in the file and that brought to its attention during the procedure before it, a breach of the substantive conditions for such a designation, set out in Annex I to that Directive, even if that breach is not expressly invoked in support of that appeal.