Decree-Law 158/2024: hierarchy of sources in Safe Country regulations

1. The facts

   According to reports from Il Sole 24 Ore, the Government enacted an emergency measure in October 2024 to stabilize the list of Safe Countries by incorporating it directly into primary law. The decision stems from a series of refusals to validate border detentions, where judges had disapplied previous ministerial decrees upon finding them non-compliant with CJEU criteria. Currently, the decree is undergoing the law conversion phase, while trial courts have already begun raising concerns regarding EU compatibility.

   National reporting highlights that the core of the dispute lies in shifting the list from an administrative act to primary legislation. While previously a judge could disapply an administrative act due to direct conflict with a superior rule, they now face a primary source. This has sparked intense debate regarding the actual latitude available to magistrates when evaluating the safety of a State whose status is mandated by Parliament.

2. 

   The rules at play

   The pillar of the reform is the new legislative framework that modifies the procedures for granting international protection by integrating the list of Safe Countries. The function of this provision is to establish a legal presumption of safety, binding the judge to follow the statutory list unless proven otherwise. Article 117 of the Constitution, which mandates compliance with international obligations, and Directive 2013/32/EU also come into play.

   The latter establishes objective criteria for safe country designation. The consequence provided by the new legislation is the systematic application of the accelerated procedure for applicants originating from such countries, drastically reducing processing times for asylum applications and facilitating forced return operations should the applicant fail to provide individual evidence of risk.

3. What the jurisprudence says

   Case law has clarified that the primacy of EU law prevails over national law. If an internal provision conflicts with a European directive endowed with direct effect, the judge is obliged to disapply it. Courts have recently reaffirmed that the assessment of safety cannot be an unreviewable political act, but must instead be based on updated factual evidence demonstrating the absence of persecution.

   Settled case law confirms that the judge retains the power to verify whether national legislation meets the "criteria established by the Court"; in this regard, reference case law (C-406/22) specifies that a country is safe only if it is safe for the entirety of the population and territory. Therefore, the statutory form of the new list does not prevent the judge from identifying an antinomy with supranational law and proceeding with non-application or a preliminary reference.

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8. What it teaches professionals

   1. Defense strategy: do not merely challenge the list, but systematically raise the objection of conflict with EU law to encourage non-application.
   2. Burden of proof: document Country of Origin Information (COI) with surgical precision to prove that the country's safety is not integral.
   3. Continuous training: monitor pending preliminary references at the CJEU, as a European ruling can invalidate the entire legislative structure introduced by emergency decree.

9. Developments: referral to the CJEU and return to Italy

   On November 11, 2024, the immigration section of the Court of Rome, as reported by Ansa and Il Sole 24 Ore, suspended the validation of the detention of seven migrants transferred to the Albanian center of Gjader. The judges ordered a preliminary ruling referral to the Court of Justice of the European Union to clarify the relationship between Decree-Law 158/2024 and EU law. According to analyses by Guida al Diritto, the court reaffirmed that the primacy of EU law requires the judge to verify the safety of countries of origin regardless of the hierarchical rank of the national rule. Since the suspension caused the legal deadlines for detention to expire, the migrants were returned to the port of Brindisi. The presumption of innocence remains firm regarding administrative and sanctioning profiles pending the final judgment from Luxembourg.

References: D.L. 23 ottobre 2024 n. 158D.lgs. 28 gennaio 2008 n. 25Direttiva 2013/32/UEArt. 117 Costituzione

Editorial oversight: Avv. Federico Papa·ICAMUpdated 10 November 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction