EU Advocate General on Albania centres: “Legitimate, but migrant rights must be protected”

Brussels – “The centres in Albania will work”, Italian Prime Minister Giorgia Meloni declared from the stage at the Atreju festival in December 2024. But the claim – still unsubstantiated – does not prove that the minimum standards of treatment laid down by European Union law are respected inside them.

This is the main conclusion in Laila Medina‘s opinion, the Advocate General of the Court of Justice of the EU (CJEU), published today (11 June). Her opinion concerns the specific case of two migrants detained in Albania, on which the Rome Court of Appeal asked the CJEU to rule, and it could lead to more general conclusions regarding Italy-Albania Protocol’s compliance with European law. It should also be emphasised that the Advocate General’s conclusions do not bind the final judgment of the Luxembourg judges, which will be delivered in the coming months and could overturn Medina’s opinion.

The origins of the case

The CJEU’s involvement stems from the case of two non-EU nationals who, after being detained in Italy, were subject to removal orders. Under the protocol signed by Rome and Tirana in November 2023, they were subsequently transferred to one of the two repatriation hubs that Italy built in Albania and which have been operational since October 2024.

At this point, the two applied for international protection status, effectively submitting a new asylum application. Because the migrants’ status had changed, it became necessary to issue new detention orders, based no longer on the rules governing return but on those relating to asylum seekers.

Called upon to validate the new measures, the Rome Court of Appeal referred the matter to the Court of Justice of the European Union for a preliminary ruling, raising two main issues.

The first concerns the legitimacy of the Protocol between Rome and Tirana: since asylum matters are governed by European law, did Italy have the right to conclude an agreement with Albania on its own, or could such an agreement only be signed by the EU as a whole?

The second, more specific question is this: even assuming, without conceding, that the Meloni government could lawfully conclude the agreement, do the two return centres in Shengjin and Gjader comply with the guarantees required under EU law? More specifically, the judges in Rome asked the Court to verify compliance with the rights of defence, visitation, and health of applicants for international protection.

The Advocate General’s conclusions: “Centres in Albania are legitimate, but Italy must respect the guarantees regarding the treatment of migrants”

The Advocate General answered the two questions raised by the Italian judges on the basis of a straightforward principle: Member States may conclude bilateral agreements on asylum only in those areas not already been “harmonised” by EU law. If such agreements concern these areas, then national governments must ensure that “they do not alter the scope” of pre-existing EU rules.

The key issue, therefore, is harmonisation: where European rules already impose uniformity, bilateral agreements that radically alter their content are not possible.

On this basis, Medina gave an affirmative answer to the Rome Court of Appeal’s core request: EU Member States may enter into bilateral agreements providing for the construction of return centres in third countries, such as the one signed by Italy with Albania. The reason lies in the lack of European harmonisation in this sector. “No provision of EU law that provides for the geographical
location of detention facilities for applicants for international protection,” Medina said. Therefore, “Member States remain free to locate such centres on Albanian territory.” This opinion also confirms the stance taken by the EU Advocate General on this point. Nicholas Emiliou, Medina’s colleague at the CJEU, had expressed the same opinion on 23 April.

Similarly, Medina “approves” the agreement between Rome and Tirana, including the definition of the grounds on which a migrant may be detained in return centres. In this case, the Advocate General explains, “EU law has brought about a complete harmonisation” of the grounds for detention, but the text of the Protocol “does not deviate from those strictly authorised by EU rules.” In other words, the Italian-Albanian agreement does not alter the content of the European list of grounds for detention; it merely aligns with it.
While the Meloni government can breathe a sigh of relief at this stage, it is in the final lines of his opinion that Medina sounds the alarm regarding the actual compliance of the Albanian centres with EU law. Responding to the second question raised by the judges in Rome, concerning compliance with EU guarantees for asylum seekers, the lawyer emphasises that “the relevant directives fully
harmonise the minimum guarantees, below which the Member States may not go.”

According to Medina, the risk is precisely that the text of the agreement between Rome and Tirana has fallen short of this threshold. “The protocol and the national implementing legislation do not appear to contain clear and precise
rules, making it possible to guarantee all of those rights.”

Among the safeguards that the agreement would jeopardise, the document highlights the right to confidentiality of communications between lawyers and their clients, the right to reimbursement of lawyers’ travel expenses, the right to visit and communicate with family, and the obligation to release a detained person immediately upon expiry of the detention validation period.

“Consequently, the protocol and national implementing legislation are likely to affect or alter the minimum
procedural guarantees provided for by EU law,” the Advocate General concludes.

“They will work” is not synonymous with “they will respect the fundamental rights of the individual,” as stated here.