A Moroccan national irregularly entered Italy in November 2024 and the Prefect of Imperia ordered his expulsion in September 2025. He was placed in detention in the Pre-Removal Centre (Centro di Permanenza per il Rimpatrio -CPR) in Turin–Brunelleschi with the purpose of being returned. The detention order was validated by the Justice of the Peace, and he was further transferred to the Gjadër CPR in Albania on 24 October 2025, in execution of the Italy-Albania Protocol. During his detention in Albania, he lodged an application for international protection on 3rd November 2025 and the Questore of Rome ordered his continued detention on the same day, assessing that the asylum claim was submitted solely to frustrate or delay the removal, and requested the Court of Appeal to validate the measure.  

The Rome Court of Appeal found that the applicant did not substantiate any ground for asylum or for special protection, he is not integrated in Italy, has no family here, on the contrary his spouse and minor child are in Morocco. The court considered that his asylum application was instrumental to delay the removal thus it considered that the requirements for his detention were met. However, the court had doubts on the legal basis for ordering his detention in Albania and on Italian competence to stipulate such prerogative under the Italy-Albania Protocol in view of the EU’s exclusive competence to conclude international agreements in areas of commonly agreed rules which may be altered or affected by such agreements.  

The court found that the Italy-Albania Protocol covers an area already extensively governed by the Common European Asylum System (CEAS), including asylum procedures, reception conditions and detention.  As such, in view of Articles 4(3) of the Treaty on the European Union (TEU), Articles 3(2) and 216 (1) of the Treaty on the Functioning of the EU (TFEU), it considered that the EU has exclusive external competence in the field concerned of asylum and reception, such that Member States are precluded from concluding an agreement like the Italy–Albania Protocol, which affects or alters the scope of the CEAS.

The court further stated that, even if assuming that the existence of the Protocol is not precluded by the EU competence, however, it expressed doubts on its compatibility with the CEAS, and the guarantees provided by the EU Charter on Fundamental Rights.

It emphasised that according to EU legislation and case law of the CJEU, asylum, reception and detention related procedures are envisaged to take place on the territory of a Member State, at its borders or in transit zones, whereas the Protocol creates facilities outside EU territory where asylum applications are examined and applicants are detained. The court considered that this agreement raises concerns related to safeguards, undermining the lawfulness, necessity and proportionality of detention as enshrined under Articles 26 of recast Asylum Procedures Directive (APD) and Articles 8–9 of the recast Reception Conditions Directive (RCD), read in conjunction with Article 6 of the EU Charter. The court affirmed that the current provisions of the Protocol hinder effective access to courts, lawyers and civil society organisations, as foreseen under Article 46 of the recast APD, Article 10(4) of the recast RCD and Article 47 of the EU Charter, as well as the Member State’s obligations regarding adequate living standards and healthcare for applicants under Articles 17 and 19 of the recast RCD.

The court analysed the changes under the Pact on Migration and Asylum to find that the new rules are designed to ensure a greater convergence, that directives will be replaced by regulations directly applicable to Member States, while removing certain optional clauses and the possibility for Member States to introduce more favourable domestic rules, with some exceptions. Looking at the evolution of the EU law on asylum, the court highlighted that the news rules under Article 54 (1) of the Asylum procedures Regulation, repealing the current recast APD do not depart from the current rules and do not foresee the possibility of examining asylum applications in places other than the external border, the proximity of the same or transit zones, or even from other places that are however designated on the territory of the Member State, and not already outside it.

The two questions are:

1. Does Article 4(3) of the TEU, Articles 3(2) and 216(1) of the TFEU — according to which the EU  has exclusive competence to conclude international agreements where such conclusion is provided for in a legislative act of the EU or is necessary to enable it to exercise its internal competences, or where such agreements may affect common rules or alter their scope — with the consequence that, in accordance with the principle of sincere cooperation, the power to conclude agreements with third States which affect common rules or alter their scope, or which affect a field fully governed by EU law and falling within the EU's exclusive competence, is centralised in the EU itself, must be interpreted as precluding a Member State from concluding an international agreement with a non-EU country for the management of migration flows, such as the Italy–Albania Protocol?
2. If the answer to the first question is in the negative, does EU law, in particular: - Article 26 of the recast APD, Article 8 (1,2, 4) and 9 (2,3) of recast RCD, the latter also read in conjunction with Recital 15 thereof, all interpreted in the light of Article 6 of the EU Charter, with regard to detention, as well as Article 46 of the recast APD and Article 10 (4) of the recast RCD, on the right to defence, interpreted in light of Article 47 of the EU Charter, and Articles 17 (2,3) and 19 of the recast RCD on the right to health of asylum seekers, - preclude the transfer and detention of third country nationals, including asylum applicants, in areas located outside the EU territory pursuant to an international agreement such as the Italy-Albania Protocol?