By Emilio De Capitani
Setting the ..table
“Laws are like sausages. It is best not to see them being made” is the most famous Otto Bismark’s quote, (even though, there’s no evidence, that Bismarck ever said it, much less coined it…). This statement may well come to mind when looking at the procedure followed by the EU legislators when preparing, negotiating and adopting the legislation on “Safe Countries”. The legislative act is Regulation (EU) 2024/1348 establishing a common procedure for international protection in the Union. It consolidates the first list of EU “Safe countries” established by Regulation (EU) 2026/464 as well as the new rules defining the concept of ‘safe country’ eg Regulation (EU) 2026/463
It is worth noting that these texts creates some “legal presumptions” whose main justification is to make easier to repatriate or expel both irregular migrants and people who have not been granted the right to asylum[1] These legal presumption which amounts to consider as unfounded most of the request for protection of the people trying to enter the EU from these third countries and because of this it significantly restricts the rights of people who are extradited, removed or turned back. It will be up to them to prove in very short deadlines that, in exceptional circumstances, the concept of a safe country of origin should not apply in their specific case (see paragraph 5 of Regulation 2026/464)[2] . Furthermore, the right to judicial protection, guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, would be severely restricted, as judicial appeals must be lodged within very short time limits, would not automatically have suspensive effect and, in the event of a negative decision, the individual would not be permitted to remain legally within the territory of the EU.
On these aspects it is worth recalling the art.52.1 of the EU Charter which states “Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law (emphasis added) and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.limitations to fundamental rights may be adopted “
Has the principle of legislative transparency been respected in the Safe Countries case ?
In the following lines I will focus notably on some principles of the EU Legislation which in my opinion have been violated in this case.
It is self evident that these three Regulations have been adopted under the joint responsibility of the European Parliament and of the Council [3]following the so called “ordinary procedure” (art.294 TFEU) and are therefore EU “legislative acts” (art.289 TFEU). However it is worth recalling that since Lisbon art.15.2 TFEU has established the obligation of legislative transparency which covers not only the votes (as it was the case before Lisbon) but also debates and negotiating preparatory documents. Unsurprisingly the CJEU has declared in 2018 that “transparency is inherent to legislative procedure” as legislative transparency is the main expression of EU democratic nature. As such, the co-legislator obligation of proactively publishing legislative preparatory documents shall not depend from the aleatory condition that citizens may submit a request for access to these documents. Proactive publication of legislative preparatory documents paves also the way for citizens’ timely participation to the EU decision making process as granted by art.10.3 11 of the TEU.
Building on the CJEU jurisprudence on Safe Countries ..
Furthermore in the case of the EU legislation defining the “safe countries” the general obligation of legislative transparency foreseen by art.15.2 TFEU has already been strengthened by the CJEU jurisprudence. According to the judgment of the Court of Justice of the European Union in Alace and Canpelli (in joined cases C-758/24, paragraphs 86–87, and C-759/24), “ the information justifying the designation of a third country as ‘safe’ – and on which a legal presumption may be based – must be precise and accessible not only to the public but, in particular, to the person seeking asylum or being refused entry; and, above all, it must be verifiable by any court called upon to rule on the matter[4](emphasis added). This jurisprudence was referring to national legislation dealing with “safe countries” and in my opinion is transferrable also to EU legislation. Moreover Article 61 of the same ‘Procedures’ Regulation, provides for the use of ‘relevant and available’ sources in order to verify whether a country can be defined as safe. In other words, the designation of a country as ‘safe’ cannot be the result of mere political discretion, as it affects the exercise of a fundamental right (the right to political asylum) and because it may limit the prohibition on expulsion laid down in the Charter of Fundamental Rights of the European Union.
Unfortunately, it is by no means clear from the text and the preparatory work on the European legislation concerning safe countries what information the legislator relied on in designating several third Countries as ‘safe’. This is notably the case of Regulation (EU) 2024/0464, which, despite affecting the exercise of fundamental rights, did not undergo an impact assessment, as required by the 2016 ‘Better Law-Making’ Interinstitutional Agreement. Instead it merely refers to information gathered by the European Asylum Agency (EUAA) which may be considered the real impact assesment in this case. As such, following the 2018 “ClientHeart” jurisprudence on the accessibility of legislative impact assessment it should had been, at least partially disclosed. No way: when in 2024 I submitted to the EUAA a request of access to that information I received a negative answer for procedural reasons. Then I challenged the refusal of disclosure before the General Court (case T-661/25).[5] On my side the history could had be ended here awaiting for the General Court Ruling but something, unexpected, happened and may now re-open the issue of legislative transparency of that EU legislation on Safe Countries even before the CJEU.
India is a “safe Country” ? No according to the association “Sikhs for Justice”
It is worth noting that the EU has declared, that INDIA is a “safe” Country for all its territory and for all the categories of people living there notwithstanding Article 63 of the ‘Procedures’ Regulation would had permitted to exclude parts of the territory or specific categories of persons. The latter approach has been adopted, for example, by the legislation of the Netherlands, which states: “The designation of this country as a safe country of origin does not apply to: • people originating from the ‘union territory’ of Jammu and Kashmir; • religious minorities who have experienced problems because of belonging to that religious minority; • Dalit women and girls; • journalists; • persons who have been critical of the Indian government and government policy, and have experienced problems as a result (for example, human rights activists, academics and demonstrators).” ([6] )
However these reservations, which, if mirrored at EU level would allowed for greater protection of certain categories of people and citizens of certain Indian states, can no longer be invoked because the new EU-level general declaration ([7]) declaring India as safe takes precedence over national declarations. However, a number of questions may arise, such as: which of the two declarations more accurately reflects the reality on the ground in India? On what facts was the Netherlands’ decision based, and on what other elements the European legislator has decided that certain safeguards intended for specific categories of people and specific regions of India can no longer be invoked?
This may explain why a representative of the Sikhs for Justice association has recently submitted a request of access to documents to the European Parliament and to the Council of the European Union.
Both the EP and the Council have, at least as a first reaction, refused to disclose the EUAA information.
How EU legislative transparency may be granted by invoking “classified” information?
On one side it has been evoked the risk for EU external relations even though what is at stake is the autonomy of EU “internal” legislation and not international negotiations.
On the other side both the institutions have declared that the Asylum Agency has ‘classified’ these information as ‘RESTREINT’ and that the EP and the Council have retained that classification.
This is quite disturbing because first the only institutions which may “classify” EU information according to art.9 of Regulation 1049/01 are at very large extent the Commission, the EP and the Council which were the only institutions covered by art.255 TCE on which Regulation 1049/01 was founded. Moreover it emerges very clearly from the legislative preparatory work of Regulation 1049/01 that art.9 was as an exceptional regime for information covering only EU and MS defence policies ([8]) and clearly not information dealing with a Country general condition of “safety” as in the this case.
It is at least unfortunate that the this EUAA ‘classification’ has been subsequently endorsed by the Commission when the legislative proposal and, later, by the Parliament and the Council in their capacity as legislators. However even if endorsed by the EP and the Council this choice appears open to criticism, at the very least, in terms of both form and content. It is open to criticism in terms of form, insofar as the ‘RESTREINT’ level is not provided for in Article 9 of Regulation (EC) No 1049/01, the only European legislation dealing with ‘sensitive information’ that may be shared only with authorised persons (‘need to know’). But it is open to criticism above all on the merits, as two scenarios could be envisaged:
- either this information proves that India is a safe country, in which case it is difficult to see what negative consequences a possible disclosure might have,
- or, conversely, it proves the opposite, in which case its ‘classification’ would violate European law on two counts.
Indeed, by declaring a country to be safe, despite independent information to the contrary, the European legislator would be exercising its remit in an arbitrary manner (which should instead be based on independent and objective information, precisely because it affects the exercise of a fundamental right such as the right to asylum and compliance with the prohibition on refoulement, as laid down in the Charter of Fundamental Rights).
Above all, however, the ‘classification’ of the information used to justify the concept of a ‘safe country’ meant that its contents could not be debated publicly during the legislative negotiations, particularly in the European Parliament which denounced this situation in its resolution on access to documents.[9]
Conclusion
Invoking classified information to justify the non disclosure of legislative preparatory documents seems to me a clear breach of the principle of legislative transparency laid down in Article 15(2) of the Treaty on the Functioning of the European Union, and risks, unfortunately, of bringing the European legislator closer to that of North Korea[10] .
The procedure for access to documents, initiated by the Sikhs for Justice Association, is still ongoing, so it is not yet clear whether the European Court will be called upon to settle the matter, but in the meantime, the Sikhs for Justice association has taken steps to limit the damage caused by the new European regulations, including through ‘participatory’ channels, by publishing an open letter and by submitting a petition to the European Parliament calling for the suspension and amendment of India’s designation as a ‘safe country’ (as foreseen by Article 63 of the ‘Procedures’ Regulation)
It now remains to be seen whether the legality of designating India as a ‘safe’ country will be reviewed through the courts or following a legislative review process. Whatever the future of the European legislation may be, it is certainly commendable and noteworthy that representatives of civil society, such as the organisation Sikhs for Justice, are fighting so resolutely not only for the respect of their own fundamental rights, but also for better quality legislation and European democracy, in accordance with the principles of democracy, the rule of law, the protection of minorities, solidarity and non-discrimination, upon which the European Union is founded.
[1] Article 41(1)(e) and Article 3(a) concerning accelerated procedures
[2] see: https://eur-lex.europa.eu/legal-content/IT/TXT/PDF/?uri=OJ:L_202600464
[3] As required by see art 14 and 16 TEU.
[4] SEE: “(86 ) However, the effectiveness of judicial review regarding compliance with the substantive conditions set out in Annex I to Directive 2013/32 presupposes that the court before which the case is brought has access to the sources of information on the basis of which the competent national authority designated the third country in question as a safe country of origin. That requirement of effectiveness also implies that the court in question must be able to verify whether that designation complies with the substantive conditions set out in Annex I to that directive, taking into account any other information it may have gathered itself, whether from public sources or from sources which it has requested one of the parties to the proceedings before it to produce, provided that, on the one hand, the reliability of that information has been established and, on the other hand, in accordance with the principle of the right to be heard, those parties have the opportunity to submit their observations on that information. (87 ) It follows that Member States are required, under Article 46(3) of Directive 2013/32, to adapt their national law in such a way as to ensure sufficient and adequate access to the sources of information on which they have relied in designating safe countries of origin. Such access must enable an applicant for international protection originating from such a country, and the national court hearing an appeal against a decision concerning the application for international protection, to familiarise themselves effectively with those sources of information in accordance with the case-law referred to in paragraph 78 of this judgment.”
[5] Even though the main issue at stake in this case is the fact that I have submitted my confirmatory application with two days delay that EUAA has considered mandatory and I consider only of ordinatory nature.
[6] See Council document WK 8158/2025, pp. 23–24
[7] According to Regulation (EU) “With regard to India, according to information from the Asylum Agency, nine Member States currently designate it as a safe country of origin at national level, and in 2024 the recognition rate at Union level for applicants from that country was 2 per cent. The country has ratified the main international human rights instruments. India is a constitutional republic with a parliamentary democracy. There is no evidence of expulsion, removal or extradition of Indian nationals to countries where they would be at risk of being subjected to the death penalty, torture, persecution or other inhuman or degrading treatment. In general, there is no real risk of serious harm within the meaning of Article 15 of Regulation (EU) 2024/1347. Although India retains the death penalty in its criminal law and has not signed the Second Optional Protocol to the International Covenant on Civil and Political Rights, which aims to abolish the death penalty, in practice the death penalty has not been carried out since 2020. India has signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. There are no armed conflicts in India and, consequently, there are no threats arising from indiscriminate violence in situations of internal or international armed conflict. In general, there is no persecution in the country within the meaning of Article 9 of Regulation (EU) 2024/1347.”
[8] Following the adoption of art.9 the European parliament accepted to withdraw a Court Case dealing with an agreement between the Council and NATO (so called “Solana agreement”)
[9] “..calls, in particular, on the European Union Agency for Asylum (EUAA) to grant the European Parliament timely access to its documents, in particular information and analysis on safe countries of origin and safe non-EU countries..” Par 16 of European Parliament resolution of 10 March 2026 on public access to documents – report covering the years 2022 – 2024 (2025/2137(INI)) (C/2026/4005)
[10] As stated in plenary by Graham Watson, Chair of the European Parliament’s Committee on Civil Liberties, on May 2nd,2000 when voting on the Access to documents last compromise.
