The request for a preliminary ruling was made in a case concerning NP, a Syrian national from Aleppo, whose request for international protection was rejected by the Chairperson of the National Refugee Agency in Bulgaria (DAB) on 18 June 2024, with the reasoning that although the applicant did not qualify for refugee status, he was exposed to a real threat to his life or person due to the internal armed conflict and indiscriminate violence in Syria. As NP was believed to have safely spent about a month in Türkiye before illegally entering Bulgaria and considering that his brothers and sisters were believed to be living there, Türkiye was considered a safe third country in which NP could safely settle. Based on publicly available sources, DAB considered that stateless persons and refugees from Syria who arrived in Türkiye due to events in Syria since 28 April 2011 were receiving temporary protection in Türkiye, were protected against a forced return to Syria and their basic needs were satisfied.

NP challenged the decision before the Administrative Court of Sofia City, the referring court. On appeal, further information was requested from DAB, which noted that it was applying Decision No 247, which included Türkiye as a safe third country, that DAB did not have a methodology under Article 38(2)(b) of the recast APD, that NP had not been informed of the possibility of challenging the application of the concept of a safe third country to him, nor the existence of a connection with Türkiye, the third country concerned.

Observing that the concept of safe third country gave rise to divergent applications at the national level, the Administrative Court of Sofia City sought clarification from the CJEU on the interpretation of this concept.

The first and second questions

The CJEU reformulated the questions referred by the national court into “whether Article 33(2)(c) and Article 38 of Directive 2013/32 must be interpreted as meaning that, first, the ground for inadmissibility set out in Article 33(2)(c) of that directive must necessarily be applied when examining the merits of an application for international protection and that, second, an application under substantive examination may be rejected without being declared manifestly unfounded or inadmissible on the grounds that a third country is considered to be a safe third country for the applicant, even though the competent authority has found that the applicant meets the conditions for being granted international protection laid down in Directive 2011/95.”

The CJEU first noted that Article 33(2)(c) of the recast APD includes the ground of inadmissibility of an application for international protection in the situation where a third country is found to be a safe third country for the applicant under Article 38. In light of recitals 18 and 43 and the wording of Article 33(1) and (2)(c), an examination of the application under Article 33(2)(c) is intended to precede the examination on the merits and therefore does not necessarily have to take place during that examination. Furthermore, an application may be declared inadmissible based on the safe third country concept also where the conditions for granting international protection would otherwise be met, or after a substantive examination of the protection needs.

The CJEU noted that in Bulgaria, point 14 of Article 13(1) of the ZUB provides for the rejection as manifestly unfounded of an application on the grounds that the foreign national comes from a safe third country. The CJEU considered that this is a rejection on grounds of inadmissibility, within the meaning of Article 33(2) of the recast APD, in breach of the requirements arising from Articles 32 and 33. It noted however, that it is for the referring court to ascertain whether that is the case.

Thus, the CJEU replied that:

• “the ground for inadmissibility set out in Article 33(2)(c) of that directive does not necessarily have to be applied when examining the merits of an application for international protection”
• “an application under substantive examination may be rejected as inadmissible on the grounds that a third country is considered to be a safe third country for the applicant, even when the competent authority has found that the applicant meets the conditions for granting international protection laid down in Directive 2011/95. By contrast, such an application may be rejected as unfounded, or even manifestly unfounded, only under the conditions set out in Article 32 of Directive 2013/32 and may not, in any event, be rejected as unfounded on the grounds of inadmissibility provided for in Article 33(2)(c) of that directive.”

The third and fourth questions

As preliminary observations, the CJEU noted that the third and fourth questions concerned the interpretation of Article 38(2) of the recast APD, which is subject to compliance with the conditions laid down in Article 38(1) to (4). These conditions include in particular that the competent authorities must be satisfied that the third country complies with the principles which are explicitly set out in that provision.

Furthermore, the CJEU added that, in accordance with Article 38(2), rules must be laid down in national law, in particular on:

• the existence of a connection between the applicant and the third country concerned so that the movement of that applicant to that country is reasonable.
• a methodology for the competent authorities to ensure that the concept of ‘safe third country’ can be applied to a particular country or a particular applicant and that methodology must include case-by-case consideration of the safety of the country for the applicant and/or the designation by the Member State of countries considered to be generally safe.
• an individual examination to determine whether the third country is safe for a particular applicant and to challenge the application of the concept considering their particular situation and the existence of a connection with that country.

The court also added that Article 38(3) and (4) requires Member States to inform the applicant accordingly and provide him or her with a document by which the authorities of the third country are informed, in the language of that country, that the application has not been examined on the merits. In addition, when the third country does not allow the applicant to enter its territory, Member States must ensure that the applicant can initiate proceedings in accordance with the basic principles and guarantees set out in Chapter II of the recast APD.

The CJEU highlighted that the conditions included in Article 38 are cumulative, so the ground of inadmissibility in Article 33(2)(c) cannot be applied where one of those conditions is not satisfied.

Regarding specifically the fourth question, the CJEU noted that the referring court asked, in essence, whether Article 38(2)(a) of the recast APD must be interpreted as meaning that Member States must provide in their national law, for criteria for considering that there is a connection between the applicant and the third country concerned.

The court observed that by reading that provision in light of recital 44, it can be understood that Member States must define in their law the required connection between an applicant and a safe third country, also considering that the directive does not define the concept of connection. On the basis of recital 44, the connection must be sufficient to make it reasonable for the applicant to return to that third country.

The CJEU then referred to its previous case law, Tompa (C-564/18, 19 March 2020), in which it was held that transit through the territory of a third country cannot alone constitute a valid reason for considering that that applicant could reasonably return to that country.

With reference to this specific case, the court added that it is for the national court to determine whether Bulgarian law defines the ‘connection’ within the meaning of Article 38(2)(a) of the recast APD, while noting that it is apparent from paragraph 1, point 9, of the supplementary provisions of the ZUB that Bulgarian law determines the existence of such a connection by a criterion relating to the ‘stay’ of the applicant in the third country.

Furthermore, the court observed that the court would still have to determine whether, considering all the circumstances concerning a possible previous stay in a third country, such as the length and reasons for stay and the presence of close family members in that third country, such a stay is sufficient to consider that there is a connection between that applicant and the third country which would make a return there reasonable.

Thus, the CJEU held that Article 38(2)(a) of the recast APD must be interpreted as meaning that Member States must provide in their national law, for criteria for considering that there is a connection between the applicant and the third country, and that the law must specify that the connection must be sufficient to make the applicant’s movement to that country reasonable.

Regarding the third question, the CJEU noted that the national court asked whether Article 38(2)(b) of the recast APD must be interpreted as meaning that the determining authority may apply the concept of ‘safe third country’ on the basis of information from publicly available sources and a decision of the executive which draws up a list of safe third countries, without national law defining a ‘methodology’.

The CJEU observed in the first place that Article 38(2)(b) of the recast APD makes the application of the concept of ‘safe third country’ subject to the rules laid down in national law relating to the methodology for competent authorities, which must include a case-by-case consideration of the safety of the country for a particular applicant and/or national designation of countries considered to be generally safe.

The court observed that the wording of this article leaves the Member States the possibility to choose between different methods to apply the concept of ‘safe third country’, which is for them to define in their national law, either to provide for a case-by-case consideration of the safety of the country for any applicant, or the designation of countries considered to be generally safe, or a combination of those two methods.

Citing its previous case law in C-134/23, the court added that Article 38, read in the light of recitals 44 and 46, authorise a Member State to designate, by an act of general application, a country as a generally safe third country for certain applicants. In addition, considering recital 46, where Member States apply the concept on a case-by-case basis or by designating such countries as safe by acts of general application, they should take into account, inter alia, the guidelines and operating manuals and the information on countries of origin and activities, including the methodology of the European Union Agency for Asylum (EUAA), for Country of Origin Information reports, as well as relevant UNHCR guidelines, as these are publicly accessible sources. Furthermore, Member States may take into account other information from publicly available sources.

Thus, a determining authority can apply the concept of ‘safe third country’ on the basis of information from publicly available sources and of an executive’s decision which provides a list of safe third countries.

Importantly, under Article 38(2)(c) of the recast APD, Member States must provide rules for an individual examination of whether the third country is safe for a particular applicant, and ensuring the possibility of challenging the application of the concept taking into consideration the applicant’s particular circumstances and the existence of a connection with the third country.

At the same time, where a Member State chooses, under Article 38(2)(b), to designate safe third countries by means of an act of general application, the Member State must define the methodology applicable for a case-by-case assessment, considering the particular circumstances of the applicant, whether the third country satisfies the conditions for being regarded as safe for the applicant, and the possibility for the applicant to challenge the existence of a connection.

Thus, the CJEU ruled that the answer to the third question is that, under Article 38(2)(b) and (c) of the recast APD, “the determining authority may apply the concept of ‘safe third country’ on the basis of information from publicly available sources and a decision of the executive which draws up a list of safe third countries, provided that national law also defines the methodology applicable for assessing, on a case-by-case basis, according to the particular circumstances of the applicant for international protection, whether the third country concerned satisfies the conditions for being regarded as safe for that applicant and the possibility for that applicant to challenge the existence of a connection, within the meaning of Article 38(2)(a) of that directive.”

The fifth question

The CJEU noted that the fifth question concerns the implications of the right to effective judicial protection when the application is rejected on the grounds of a safe third country, essentially whether Article 38(2)(c) and Article 46(1) and (3) of the recast APD, read in the light of Article 47 of the Charter, must be interpreted as meaning that the national court hearing an appeal against a decision that rejected an application on the basis of the safe third country, must verify whether there is a connection between the applicant and the third country, even if national law does not provide such a power.

The court recalled that Article 46(1) guarantees a right to an effective remedy before a court or tribunal and Article 46(3) defines the scope of this right, namely ‘a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to Directive 2011/95’ (Alace and Canpelli, C-758/24 and C-759/24, 1 August 2025). This holds true even when the contested decision rejected the application as inadmissible.

The court noticed that the words ‘where applicable’, with regard to the protection needs pursuant to the recast Qualification Directive mean that the full and ex nunc examination by the court does not have to involve an examination of the merits and may concern the admissibility of the application pursuant to Article 33(2) of the recast APD.

Thus, in the context of examining an appeal against a decision which rejected an application on the basis of the safe third country concept, the court is required to determine whether the third country can be regarded as a safe third country for the applicant, whether each of the cumulative conditions is satisfied, including the one concerning the connection between the applicant and the third country. Also, the court must ask, where necessary, the determining authority to produce relevant documents and factual evidence and, before giving a decision, to make sure that the applicant could set out their point of view in person on the applicability of the ground of inadmissibility and could challenge the existence of a connection with the third country.

In this particular case, the CJEU held that it is for the referring court to examine the existence of a connection between NP and Türkiye, even if Bulgarian law does not grant it such a power.

Thus, the CJEU held that “Article 38(2)(c) and Article 46(1) and (3) of Directive 2013/32, read in the light of Article 47 of the Charter, must be interpreted as meaning that the national court hearing an appeal against a decision rejecting an application for international protection on the basis of the ground of inadmissibility relating to a safe third country, referred to in Article 33(2)(c) of that directive, must verify whether there is a connection, within the meaning of Article 38(2)(a) of that directive, between the applicant and the third country concerned, even if its national law does not grant it such a power.”