The application for international protection of a national of Tunisia was rejected as manifestly unfounded, as per Article 28b(1)(b) of Legislative Decree 25/2008, on grounds that he was from a country deemed safe under Article 2a of the same decree. The applicant appealed to the Tribunal of Rome, which referred question to the Court of Cassation. The tribunal asked the Court of Cassation to clarify whether, when an applicant challenges the 'safe' status of their country of origin or does not specifically challenge it, the adjudicating authority must verify this status with current information, regardless of the country's inclusion in the ministerial decree on safe countries. 

The Court of Cassation observed that the question subject to the reference for a preliminary ruling consisted of ascertaining, firstly, whether it is possible for the applicant to challenge, and for the court to reassess and review, the safety of the country of origin; and secondly, determining through which regulatory instruments and pathways such a reassessment can be carried out.

The court cited the CJEU judgment in CV v Ministerstvo vnitra České republiky, Odbor azylové a migrační politiky (C-406/22, 4 October 2024), which established that the court before which the decision on the asylum application is challenged must conduct a full and up-to-date examination of the case. The full and thorough verification to be carried out by the court may also cover the procedural aspects of an application for international protection, including the designation of a third country as a safe country of origin, since such designation may have implications for the procedure.

The court held that the ministerial decree establishing the list of safe countries cannot be considered a political act, but a legal one, as it follows the criteria outlined in the recast Asylum Procedures Directive and Legislative Decree No. 25/2009, and is subject to judicial review based on national and European legislation, along with information from the National Asylum Commission and other qualified sources such as the Member States, EUAA, UNHCR and the Council of Europe. Since there is a clear legal reference, adherence to these rules and criteria is subject to judicial review. The court clarified that the designation of safe countries of origin involves both political and legal assessments. However, judicial review remains applicable to verify whether the legal criteria for classifying a country as safe are met, despite the political nature of the decision-making process. Therefore, the court proceeded to consider whether the requirements set by EU and national law for determining a safe country of origin can be verified, or if they depend solely on the discretionary power of the governmental authority.

The court considered that, while the ministerial decree is based on a thorough investigation, its conclusions are not absolutely unquestionable. The ordinary court does not substitute its own subjective assessments for those of the ministerial decree but instead fulfils its duty to review the legality of the assessment carried out by the administration, ensuring that the power of assessment has been exercised in compliance with EU law and remains aligned with the situation in the country of origin. The court also clarified that the ordinary court does not replace the governmental authority in its discretionary assessment, but has the power and duty to review the legality of the ministerial decree, particularly when it includes a certain country of origin among the safe ones, if it clearly contradicts EU and national legislation, also considering up-to-date information on the country of origin, in line with the principle of investigative cooperation. The court noted that when a constitutional right (the right to asylum) is at stake, the ordinary court retains the authority to reconsider the inclusion of a country in the list of safe countries if the designation deviates from the established criteria, especially if it risks compromising the inviolable rights essential to human dignity in the applicant's country of origin.

Following, the court moved on to assess when the ordinary court can review the administrative act that designates a particular country of origin as safe, and what impact such a review may have. It held that the judgment on the application for international protection is not limited to a mere review of the legitimacy of the decision but must include a comprehensive assessment of the existence of the right to international protection. Such an assessment must be carried out with reference to the current situation and require the court to gather necessary information. Moreover, the court clarified that the ordinary court has the power to disapply an administrative act, such as the designation of a country as safe, if it is found to be unlawful. This power can be exercised even in cases involving public authorities, as long as the administrative act is not directly used as the basis for determining the individual's right to international protection. Hence, the ordinary court's assessment is not restricted by a country's inclusion in the safe countries list. The court has the authority to independently evaluate the conditions for protection, considering a broader range of information beyond what was reviewed by the government. In other words, the ordinary court is required to carry out an up-to-date check of the situation in the country of origin, in order to judge the application for asylum in light of the factual conditions prevailing at the time of the decision. The need for an up-to-date assessment does not concern only the merits of the application for international protection, but also the applicability of the procedure foreseen for applicants from safe countries.

The court distinguished two different scenarios. First, it considered the case when the applicant challenges the safety of their country of origin based on general conditions affecting entire groups of nationals, rather than individual circumstances. In such cases, the court must assess the ministerial decree's compatibility with EU and national law and disapply it if found incompatible. The court must also determine whether the rejection of the application is based solely on the applicant's country being designated as safe, rather than on an individual examination of the applicant's specific situation. Secondly, the court considered the case when the applicant presents serious reasons to believe that their country of origin is not safe due to their specific circumstances. In such cases, the ordinary court must conduct a concrete assessment of the applicant's individual security situation, rather than the general safety of the country. The inclusion of a country on the safe list does not prevent the court from considering specific areas of insecurity within that country. If the applicant presents serious reasons, the court must assess the risks and may suspend the contested measure, granting protection based on the applicant's personal circumstances.

Finally, in relation to the reference for a preliminary ruling made by the Tribunal of Rome, the court set out the following principle of law:

In the legislative framework prior to Decree-Law No. 158/2024 and Law No. 187 of 9 December 2024, when reviewing a decision rejecting an application for international protection by an applicant from a country designated as safe, the ordinary court, in the context of the full and ex nunc examination, can assess, on the basis of institutional and qualified sources referred to in Article 37 of the recast Asylum Procedures Directive, the existence of the conditions for the lawfulness of that designation, and, if necessary, disapply incidentally, in part, the ministerial decree containing the list of safe countries, when the designation made by the governmental authority manifestly conflicts with the criteria for classification laid down by EU and national legislation. In addition, in order to guarantee the effectiveness of the appeal, the ordinary court retains the institutional power of inquiry, inspired by the principle of investigative cooperation, where the applicant has correctly deduced insecurity in the specific circumstances in which they find themselves. In the latter case, therefore, the government assessment as to the safe nature of the country of origin is not decisive, so that no issues of disapplication of the ministerial decree arise.