Order — ECLI:EU:C:2024:1011
Date: 2024-11-29
Language of the case: Italian

Summary C-388/24 – 1 
Case C-388/24 [Oguta] i 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
4 June 2024 
Referring court: 
Tribunale Ordinario di Firenze (Italy) 
Date of the decision to refer: 
31 May 2024 
Applicant: 
GK 
Defendant: 
Ministero dell’Interno 
Commissione Territoriale per la Protezione Internazionale – 
Sezione di Perugia 
  
Subject matter of the main proceedings 
Action brought by GK, a Nigerian national, before the Tribunale di Firenze 
(District Court, Florence, Italy) for annulment of the decision of the Commissione 
Territoriale per il Riconoscimento della Protezione Internazionale di Firenze (the 
Florence Regional Commission for the grant of international protection, ‘the 
Florence Regional Commission’) within the Ministero dell’Interno (Ministry of 
the Interior) rejecting GK’s application for international protection. 
Subject matter and legal basis of the request 
The request for a preliminary ruling, lodged under Article 267 TFEU by the 
Florence District Court, concerns the interpretation of Articles 36, 37 and 46 of 
 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-388/24 
 
2  
Directive 2013/32/EU, in relation to the inclusion of a given third state in the 
national list of safe countries of origin. 
Questions referred for a preliminary ruling 
1. Primarily, must EU law, Articles 36, 37 and 46 of Directive 2013/32/EU in 
particular, be interpreted as precluding a Member State from designating a country 
as a safe country of origin subject to the exclusion of categories of persons at risk, 
in respect of whom the presumption of safety does not apply, and must, therefore, 
in such a case, the country as a whole not be regarded as a safe country of origin 
for the purposes of the directive? 
2. In the alternative, if that method of designation is not held to be prohibited 
absolutely by EU law, does EU law preclude a national rule that designates a safe 
country of origin with personal exclusions that, by number and type, are difficult 
to ascertain, given the tight time-frame of the accelerated procedure (in particular 
‘prisoners; persons with physical or mental disabilities; albinos; HIV-positive 
persons; LGBT community; victims of discrimination on the basis of gender, 
including victims and potential victims of FGM; victims of trafficking; internally 
displaced persons (IDPs); journalists; members of the Islamic Movement of 
Nigeria (IMN); members of the Indigenous People of Biafra (IPOB)’), and must, 
therefore, in such a case, the country as a whole not be regarded as a safe country 
of origin for the purposes of the directive? 
Provisions of European Union law relied on 
Charter of Fundamental Rights of the European Union, Article 47 
Directive 2013/32/EU, recital 48, Articles 36, 37, 46(1), (3), (4), (5) and (6), and 
Annex I 
Directive 2005/85, Article 30 
Provisions of national law relied on 
Italian Constitution, Articles 10, 24 and 113 
Decreto legislativo 25/2008 (Legislative Decree No 25/2008), Article 35-bis: 
‘To be admissible, the appeal shall be brought within thirty days of notification of 
the decision … 
In the cases referred to in Article 28-bis(1) and (2) … the time limits laid down in 
this paragraph shall be reduced by half. 
3. Appeals have suspensive effect, except when brought: … 
OGUTA 
 
3 
(c) against a decision rejecting the application as manifestly unfounded under 
Article 32(1)(b-bis); 
(d) against a measure adopted against the persons referred to in Article 28-
bis(2)(b), (b-bis), (c) and (e); … 
4. In the cases referred to in paragraph 3(a), (b), (c), (d) and (d-bis), the 
enforceability of the contested measure may, however, be suspended where 
serious and detailed reasons … are invoked by reasoned order … issued within 
five days after the application for suspension has been filed and without prior 
notice to the other party. The order granting or refusing the suspension of the 
contested measure shall be notified … with the application for suspension. … An 
order issued under this paragraph shall not be subject to appeal. In the cases 
referred to in paragraph 3(b), (c) and (d), when the application for suspension is 
granted, the applicant shall be issued a residence permit for asylum application.’ 
Article 32: ‘1. Subject to the provisions of Articles 23, 29 and 30, the Regional 
Commission shall take one of the following decisions: 
(a) it shall recognise refugee or subsidiary protection status, in accordance with 
Articles 11 and 17 of decreto legislativo 19 novembre 2007, n. 251 (Legislative 
Decree No 251 of 19 November 2007);  
… 
(b-bis) it shall reject the application as manifestly unfounded in the cases referred 
to in Article 28-ter;  
(b-ter) it shall reject the application if, in a part of the country of origin, the 
applicant has no well-founded fear of being persecuted or is not at real risk of 
suffering serious harm, or has access to protection against persecution or serious 
harm, and can safely and legally travel to and gain admittance to that part of the 
country and can reasonably be expected to settle there.’ 
Article 28-ter(1): ‘The application shall be deemed to be manifestly unfounded, 
within the meaning of Article 32(1)(b-bis), where one of the following conditions 
is met: … 
(b) the applicant is from a designated safe country of origin within the meaning 
of Article 2-bis.’ 
Article 28-bis(2): ‘The Police Headquarters shall transmit the necessary 
documentation without delay to the Regional Commission, which, within seven 
days from the date of receipt of the documentation, shall conduct the hearing and 
reach a decision within the following two days, in the following cases: … 
(c) applicant from a designated safe country of origin within the meaning of 
Article 2-bis.’ 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-388/24 
 
4  
Article 9(2-bis): ‘The decision rejecting the application made by the applicant as 
referred to in Article 2-bis(5) shall state the reasons exclusively by stating that the 
applicant has not demonstrated the existence of serious grounds for considering 
the designated safe country of origin to be unsafe in relation to the applicant’s 
particular circumstances.’ 
Article 2-bis: ‘1. By decree of the Ministro degli affari esteri e della 
cooperazione internazionale (Minister for Foreign Affairs and International 
Cooperation), in agreement with the Ministri dell’interno e della giustizia 
(Ministers for the Interior and for Justice), the list of safe countries of origin shall 
be adopted on the basis of the criteria laid down in paragraph 2. The list of safe 
countries of origin shall be updated regularly and shall be notified to the European 
Commission. 
2. A non-EU state can be considered a safe country of origin where, on the 
basis of its legal system, the application of the law within a democratic system and 
the general political circumstances, it can be shown that there is generally and 
consistently no persecution as defined in Article 7 of Legislative Decree No 251 
of 19 November 2007, no torture or inhuman or degrading treatment or 
punishment and no threat by reason of indiscriminate violence in situations of 
international or internal armed conflict. A country can be designated as a safe 
country of origin with the exception of parts of its territory or categories of 
persons. 
3. For the purposes of the assessment referred to in paragraph 2, account shall 
be taken, inter alia, of the extent to which protection is provided against 
persecution or serious harm by: 
(a) the relevant laws and regulations of the country and the manner in which 
they are applied; 
(b) observance of the rights and freedoms laid down in the European 
Convention for the Protection of Human Rights and Fundamental Freedoms of 
4 November 1950, ratified in accordance with legge 4 agosto 1955, n. 848 (Law 
No 848 of 4 August 1955), the International Covenant for Civil and Political 
Rights, opened for signature on 19 December 1966, ratified in accordance with 
legge 25 ottobre 1977, n. 881 (Law No 881 of 25 October 1977), and the United 
Nations Convention against Torture of 10 December 1984, in particular the rights 
from which derogation cannot be made under Article 15(2) of the said European 
Convention; 
(c) observance of the principle laid down in Article 33 of the Geneva 
Convention; 
(d) provision for a system of effective remedies against violations of those 
rights and freedoms. 
OGUTA 
 
5 
4. The assessment as to whether a non-EU State is a safe country of origin is 
based on information provided by the Commissione nazionale per il diritto di asilo 
(National Commission on the Right to Asylum), which also makes use of 
information compiled by the documentation centre referred to in Article 5(1), as 
well as other sources of information, including in particular information from 
other European Union Member States, the EUAA, the UNHCR, the Council of 
Europe and other relevant international organisations. 
5. A country designated as a safe country of origin in accordance with this 
article can only be regarded as a safe country of origin for the applicant if he or 
she is a national of that country or is a stateless person who was formerly 
habitually resident in that country and has not invoked serious grounds to believe 
that the country is not safe due to that individual’s particular situation.’ 
Decreto ministeriale 17 marzo 2023 (Ministerial Decree of 17 March 2023): 
‘The Minister for Foreign Affairs and International Cooperation, in agreement 
with the Minister for the Interior and the Minister for Justice hereby decrees as 
follows: … 
1. In accordance with Article 2-bis of Legislative Decree No 25 of 28 January 
2008, safe countries of origin are: Albania, Algeria, Bosnia-Herzegovina, Cabo 
Verde, Côte d’Ivoire, Gambia, Georgia, Ghana, Kosovo, North Macedonia, 
Morocco, Montenegro, Nigeria, Senegal, Serbia and Tunisia. 
2. When examining applications for international protection, the applicant’s 
particular situation shall be assessed in the light of the information contained in 
the country-of-origin records indicated in the investigation referred to above.’ 
Memo No 181962 of the Ministry of Foreign Affairs and International 
Cooperation: 
‘… Nigeria is considered to be a safe country of origin, but with particularly 
critical situations and risks of situation deterioration, a circumstance that requires 
constant monitoring. In the North-East region … the security situation and 
humanitarian conditions are severely compromised. Moreover, due to the tensions 
between the Nigerian military and the Islamic Movement in Nigeria (IMN), there 
are reports of possible acts of persecution towards members … of the IMN and 
members of the IPOB and its military arm ESN’.  
According to the memo, the social groups that may be at risk are the following: 1) 
prisoners; 2) persons with physical or mental disabilities; 3) albinos; 4) HIV-
positive persons; 5) LGBT community; 6) victims of gender-based discrimination, 
including victims and potential victims of FGM; 7) victims of trafficking; 8) IDPs; 
9) journalists; 10) members of the IMN; and 11) members of the IPOB. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-388/24 
 
6  
Succinct presentation of the facts and procedure in the main proceedings 
1 By an action lodged on 27 February 2024, GK, a Nigerian citizen, challenged the 
decision by which the Florence Regional Commission rejected his application for 
international protection as manifestly unfounded on the grounds that he came 
from a safe country of origin and ordered his repatriation. As a preliminary step, 
the applicant requested that the enforceability of the contested decision be 
suspended. 
2 In order to rule on this request, the Florence District Court held that it must first 
assess whether Nigeria’s inclusion in the national list of safe countries of origin 
complies with the criteria laid down in Directive 2013/32/EU. The inclusion of a 
particular state in the national list of countries of origin creates a presumption that 
that country is safe. This inclusion constitutes the prerequisite for the adoption of 
the accelerated procedure and for the derogation from the automatic suspensive 
effect of the administrative refusal decision. That suspensive effect generally 
follows from the lodging of an appeal. 
3 To verify compliance with the common criteria laid down in Annex I to Directive 
2013/32/EU and in Articles 36 and 37, the referring court then examined the 
‘country-of-origin record’ referred to in the Ministerial Decree of 17 March 2023 
by which Nigeria is designated by Italy as a safe country of origin, subject to the 
exclusion of eleven personal categories for which the presumption of safety does 
not apply. 
The essential arguments of the parties in the main proceedings 
4 GK did not expressly state that he fell into one of the exclusion categories, but 
rather contested the classification of Nigeria as a safe country in general and 
abstract terms. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
5 The referring court notes that, to overcome the presumption of safety of a country, 
an asylum seeker must show that there are serious grounds to believe that that 
country is not safe in relation to that individual’s particular situation. Moreover, 
because the lodging of an appeal against an administrative decision refusing 
international protection does not automatically suspend the effects of that 
decision, the applicant’s right to remain in the country is conditional on an interim 
judicial decision, with the applicant being subject to an increased burden of proof. 
Under certain conditions, the fact that the applicant comes from a safe country of 
origin also means that he or she could be subject to detention during the border 
clearance procedure, which has potential effects that could limit personal freedom. 
Therefore, the fact of coming from a country on the list of safe countries of origin 
and the resulting accelerated procedure result in a limitation of the asylum 
seeker’s procedural and substantive rights.  
OGUTA 
 
7 
6 The referring court then refers to the reference for a preliminary ruling in case 
C-406/22 concerning a question that is similar in part (designation of safe 
countries of origin with local geographical exclusions) and notes that the Brno 
District Court held it to be an established principle that a court, ‘when reviewing a 
decision rejecting an application based on the concept of safe country of origin in 
the context of the right to an effective remedy, must not only assess whether that 
presumption has been successfully rebutted by the applicant, but is also required 
to address the question as to whether the general inclusion of the country in the 
list of safe countries of origin was in accordance with the Directive’. This position 
is confirmed, in the Italian legal system, by the ruling of the Corte di Cassazione 
(Court of Cassation, Italy) No 11399 of 9 April 2024, which also clarifies that the 
principle of automatic suspension of the administrative measure is an expression 
of the principle of an effective remedy, affirmed by Articles 6 and 13 of the 
ECHR, Article 47 of the Charter and Article 46 of Directive 2013/32/EU, which 
includes the right to be present at the trial. In the event of failure to suspend the 
measure, the applicant would risk, instead, being removed from the country, as he 
or she would no longer have the right to remain. 
7 Therefore, the referring court considers that it must assess whether it is possible to 
include in the list of safe countries a State in which there are significant categories 
of persons at risk of human rights violations. In its opinion, and on the basis of the 
information in the ‘country-of-origin record’ produced by the Ministry of Foreign 
Affairs, the requirements laid down in Annex I to Directive 2013/32/EU are not 
met. 
8 The referring court notes that, in the practice of Member States, territorial 
exceptions for specific geographical areas or personal exceptions for applicants 
from safe countries of origin may exist and that this possibility is expressly 
provided for in Italian law by Article 2-bis of Legislative Decree No 25/2008. It 
also emphasises that the situation of widespread human rights violations in 
Nigeria is confirmed by the Country Guidance drawn up by the EUAA, which 
Member States must take into account when examining applications for 
international protection (Regulation (EU) 2021/2303, Article 11). The referring 
court notes that, apart from Italy, only Cyprus indicates Nigeria as a safe country 
of origin. Given the divergent practices of the Member States on a particularly 
important issue, it considers a ruling by the Court of Justice to be appropriate. 
9 According to the referring court, Directive 2013/32/EU does not permit the 
designation of a country as safe with exclusions covering categories of persons, 
based on the following considerations: 
(a) Annex I to the Directive requires, for the purposes of qualifying a country as a 
‘safe country of origin’, that it be possible to demonstrate ‘that there is generally 
and consistently no persecution as defined in Article 9 of Directive 2011/95/EU, 
no torture or inhuman or degrading treatment or punishment and no threat by 
reason of indiscriminate violence in situations of international or internal armed 
conflict’. The term ‘generally’ is not, in textual and logical terms, compatible with 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-388/24 
 
8  
a condition of absence of safety that permanently affects entire categories of 
people. Admitting that it is possible to classify a country as safe while excluding 
entire categories of people at risk would in fact mean allowing individual Member 
States to classify any country as safe, since, apart from situations of indiscriminate 
violence, it seems difficult to identify a State in which discrimination affects the 
population in general. The risk of such an interpretation is therefore that it could 
undermine the effet utile of the directive and restrict fundamental rights of 
applicants, on the basis of assessments by individual Member States that do not 
comply with the conditions laid down by Union law and cannot be monitored by 
the judicial authority; 
(b) the possibility of territorial and personal limitations was expressly laid down in 
Directive 2005/85/EC, whereas the current Directive 2013/32/EU no longer 
expressly provides for this possibility. The Italian legislator’s choice to make 
provision for this possibility seems to conflict with the aim of approximating 
national laws pursued by the recast version of the Asylum Procedures Directive; 
(c) the adoption of the accelerated procedure for safe country of origin should 
result in a rapid decision by offering greater simplification in non-problematic 
cases, where immediate acquisition of the necessary data and documents is 
possible, as in the case of reference to the list of safe countries approved by 
ministerial decree. According to the referring court, that simplification does, 
however, appear to be incompatible with the designation of a safe country of 
origin where entire risk categories are excluded, since, when examining the 
application for asylum, the authority must, from the moment the procedure is 
commenced, ascertain quickly that the applicant does not fall within one of those 
excluded categories. It stresses that the maximum time limit laid down in 
domestic law for the completion of the accelerated procedure is nine days 
(Article 28-bis(2) of Legislative Decree No 25/2008). Moreover, certain 
subjective categories, such as women who are victims of gender-based violence, 
victims of trafficking, and LGBT+ persons, are difficult to ascertain, as also 
emphasised by the UNHCR guidelines. If the applicant’s inclusion in an excluded 
category is not immediately stated, at a stage when compulsory legal assistance is 
not even provided, the applicant’s application would be declared manifestly 
unfounded and that individual would not even be subject to automatic suspensive 
effect and thus the possibility of remaining in the country. In addition, the 
referring court notes that even the recent Regulation (EU) 2024/1348 of 14 May 
2024 (which has not entered into force and is in any case not applicable to the 
present case), while introducing the possibility of designating a third country as a 
safe country of origin with exceptions for certain categories of persons, specifies 
that those persons must be ‘clearly identifiable’. Therefore, in the view of the 
referring court, even under the new regulatory framework, the designation of a 
country as safe does not appear to be compatible when the number or type of 
exclusions makes a simplified assessment difficult, as this is incompatible with the 
speed of the accelerated procedure. 
OGUTA 
 
9 
10 With regard more specifically to Nigeria, the referring court emphasises that the 
problematic aspects highlighted above are aggravated by the fact that the Italian 
legislator has not only identified numerous, significant categories of excluded 
persons (eleven risk groups), but has also laid down geographical exclusions 
(north-eastern states). This combination of the two exclusion criteria (personal and 
geographical) effectively prevents the rapid identification of the persons to whom 
the accelerated procedure and the derogation from the ordinary procedural regime 
should apply. 
11 In conclusion, according to the referring court, the preliminary assessment of the 
lawfulness of the accelerated procedure in relation to the common criteria laid 
down by the directive must relate to the situation of the country as a whole, since 
it is not compatible with European Union law for national law to provide for the 
exclusion of entire categories of persons deemed to be at risk. Neither does it 
seem compatible to extend the notion of safe country of origin by means of 
mechanisms not provided for in the directive (such as exclusions of personal 
categories) that imply investigations that are not compatible with the time 
constraints associated with the accelerated procedure. 
12 The referring court considers in any event that, should the Court of Justice not 
consider that option to be absolutely prohibited, the exclusion of personal 
categories would not be possible where those categories, by number or type, are 
difficult to ascertain and are not compatible with the tight time-frame of the 
accelerated procedure. Therefore, according to the referring court, in the event of 
the unlawful classification of a country as safe, the application must be examined 
according to the ordinary rules, including the automatic suspensive effect resulting 
from the lodging of the appeal. 
13 Finally, the referring court requests the application of the expedited procedure 
under Article 105 of the Rules of Procedure of the Court of Justice, in view of the 
large number of countries that the Italian State has included on the list of safe 
countries of origin subject to personal exclusions, and the need to rule on the 
applicants’ right to remain in Italy.