Opinion of the Advocate General — ECLI:EU:C:2024:442
Date: 2024-05-30
Language of the case: Czech
Procedure: Reference for a preliminary ruling
Origin: Czechia

Summary C-406/22 – 1 
Case C-406/22 
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: 
20 June 2022 
Referring court: 
Krajský soud v Brně (Czech Republic) 
Date of the decision to refer: 
20 June 2022 
Applicant: 
CV 
Defendant: 
Ministerstvo vnitra České republiky (Ministry of the Interior of the 
Czech Republic) 
  
Subject matter of the main proceedings 
Action challenging the defendant’s decision rejecting the applicant’s application 
for international protection as manifestly unfounded. 
Subject matter of the decision to refer  
The referring court seeks an interpretation of certain provisions of Directive 
2013/32/EU of the European Parliament and of the Council of 26 June 2013 on 
common procedures for granting and withdrawing international protection (‘the 
Directive’). 
Questions referred for a preliminary ruling 
1. Should the criterion for the designation of safe countries of origin for the 
purposes of Article 37(1) [of the Directive] in Annex I(b) to the Directive – i.e., 
that the country concerned provides protection against persecution and ill 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-406/22 
 
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treatment through observance of the rights and freedoms laid down in the 
European Convention for the Protection of Human Rights and Fundamental 
Freedoms, in particular the rights from which derogation cannot be made under 
Article 15(2) of that convention – be interpreted as meaning that, if the country 
withdraws from its commitments under the Convention for the Protection of 
Human Rights and Fundamental Freedoms in time of emergency under Article 15 
of the Convention, it no longer meets the criterion for being designated as a safe 
country of origin?  
2. Should Articles 36 and 37 [of the Directive] be interpreted as meaning that 
they prevent a Member State from designating a country as a safe country of 
origin only in part, with certain territorial exceptions, to which the assumption that 
that part of the country is safe for the applicant will not apply, and if the Member 
State does designate a country with such territorial exceptions as safe, then the 
country concerned as a whole cannot be deemed a safe country of origin for the 
purpose of the Directive? 
3. If the reply to either of these two questions referred is affirmative, should 
Article 46(3) [of the Directive], in conjunction with Article 47 of the Charter of 
Fundamental Rights of the European Union, be interpreted as meaning that a court 
deciding about an appeal challenging the decision on the manifestly unfounded 
nature of the application, pursuant to Article 32(2) [of the Directive], issued in 
proceedings conducted pursuant to Article 31(8)(b) [of the Directive], must take 
into account ex officio that the designation of the country as safe is contrary to EU 
law, due to the reasons stated above, without requiring an objection on the part of 
the applicant? 
Applicable provisions of European Union law and international law  
Articles 18 and 47 of the Charter of Fundamental Rights of the European Union 
(‘the Charter’). 
Recitals 11, 12, 40 to 42, and 46 and Articles 1, 31(8), 32(2), 36, 37, 46, and 
Annex I to the Directive.  
Protocol No 24 on asylum for nationals of Member States of the European Union 
(‘Protocol No 24’).  
Article 15 of the Convention for the Protection of Human Rights and Fundamental 
Freedoms (‘the Convention’) and Article 3 of the Geneva Convention Relating to 
the Status of Refugees. 
Applicable provisions of Czech legislation  
Pursuant to Paragraph 16(2) and (3) of zákon č. 325/1999 Sb., o azylu (Law 
325/1999 on asylum; ‘the Law on Asylum’) application for international 
MINISTERSTVO VNITRA ČESKÉ REPUBLIKY, ODBOR AZYLOVÉ A MIGRAČNÍ POLITIKY 
 
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protection shall also be rejected as manifestly unfounded if the applicant arrives 
from a state which the Czech Republic regards as a safe country of origin, unless 
the applicant proves that, in his or her case, the state in question cannot be 
considered to be such a country. If reasons exist for such rejection, no assessment 
shall be made as to whether the applicant satisfies the criteria for being granted 
asylum or subsidiary protection and as to whether the applicant submits 
information testifying to the fact that he or she might be exposed to persecution or 
that he or she is under threat of serious harm. 
Pursuant to Paragraph 3d of the Law on Asylum, an applicant for foreign 
international protection is entitled to remain in the Czech Republic, but this does 
not give rise to his or her right to a residence permit. Pursuant to 
Paragraph 2(1)(b), a foreign national shall also have the status of an applicant for 
international protection for the period during which an appeal may be made and 
for the duration of legal proceedings on an appeal, pursuant to the Soudní řád 
správní (Code of Administrative Justice, against a decision of the Ministry, if such 
appeal has suspensory effect, or until the issuance of a ruling of a regional court 
concerning refusal to grant suspensory effect, if the foreign national has applied 
for such. Pursuant to Paragraph 32(2) of the Law on Asylum, the lodging of an 
appeal against a decision pursuant to Paragraph 16(2) of the Law on Asylum shall 
not have suspensory effect. Pursuant to Paragraph 85b(1) of the Law on Asylum, 
the Ministry shall issue a departure order ex officio, with a maximum deadline of 
1 month, to a foreign national, after a decision to reject an application for 
international protection as manifestly unfounded, unless such decision is 
overturned by the court, or after a resolution of a regional court not to grant 
suspensory effect.  
Pursuant to Paragraph 2(1)(k)(3) of the Law on Asylum, a safe country of origin 
means a country that has ratified and observes international conventions on human 
rights and fundamental freedoms, including laws relating to effective remedial 
measures. Pursuant to vyhláška č. 328/2015 Sb., kterou se provádí zákon o azylu a 
zákon o dočasné ochraně cizinců (Decree Implementing the Law on Asylum and 
Temporary Protection of Foreign Nationals, ‘the Decree’), Moldova is regarded 
as a safe country of origin, with the exception of Transnistria.  
Pursuant to Paragraph 73 of zákon č. 150/2002 Sb., soudní řád správní (Law 
150/2002, Code of Administrative Justice, ‘Code of Administrative Justice’), at 
the complainant’s request, after hearing the defendant’s opinion, the court shall by 
resolution award suspensory effect to the complaint, providing that the execution 
of the decision or other legal consequences of the decision would result in 
disproportionately greater harm to the complainant than that which may be caused 
by the granting of the suspensory effect to third persons, provided it is not 
contrary to an important public interest.  
Pursuant to Paragraph 76(1)(c) of the Code of Administrative Justice, the court 
shall revoke the contested decision for procedural faults for substantial breach of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-406/22 
 
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the regulations on proceedings before an administrative authority, if it could result 
in an unlawful decision on the matter itself.  
Brief description of the facts of the case and the original proceedings  
1 On 9 February 2022, the applicant, who is from Moldova, lodged an application 
for international protection in the Czech Republic (‘CZ’). The grounds stated were 
threats he had received from unknown persons. In 2015, he witnessed an accident 
in which a car ran over a person on the pavement, killing that person. The 
applicant witnessed everything. The perpetrator drove away from the accident. 
The applicant called the ambulance and the police. That same night, some people 
called by his home. They were wearing balaclavas. They took him into the woods 
and beat him up. The applicant then ran away. He returned home, took his 
daughter to an acquaintance’s house to be looked after temporarily, and contacted 
the police. The daughter then went to be with her mother in Kazakhstan, to be 
safe. The police said that they would investigate the matter, but that they did not 
know the perpetrator and could not help the applicant. The applicant did not return 
home out of fear. He hid at his friends’ homes. Two days later, he did return 
home, to discover that his house had burnt down. The applicant then fled 
Moldova. An acquaintance arranged for him to obtain a Romanian passport. Using 
that passport, he went to the Czech Republic. He returned to Moldova in 2016 and 
2019. However, he tried not to let anyone know of that, other than his cousins. 
The police have been investigating the entire matter for seven years. They have 
not, however, found the perpetrator. 1 The applicant never complained about the 
steps taken by the police.  
2 The applicant lodged an application for international protection (‘the applicant’s 
application’) in order to legalise his stay in CZ. He admitted that, in 2016, he had 
been subject to administrative expulsion for two years, because he had been 
working under a false Romanian passport. In 2020, he received a departure order, 
which was reissued on 23 January 2022. 
3 By its decision of 8 March 2022, the defendant rejected the applicant’s application 
as manifestly unfounded under Paragraph 16(2) of the Law on Asylum (‘the 
rejection decision’), on the grounds that CZ considers Moldova, with the 
exception of Transnistria, to be a so-called safe country of origin, as set out in the 
Decree. The defendant had also gathered information from various sources about 
the political and security situation in Moldova and about the state of adherence to 
human rights.  
4 If the offender comes from a safe country of origin, he bears the burden of proof 
to show that, in his case, the country concerned cannot be regarded as safe, which 
the applicant has failed to do for the following reasons: 
 
1 Reportedly, the police do know who committed the murder, but are unable to prove anything 
against the person concerned, for whom they have been reportedly searching for 25 years. 
MINISTERSTVO VNITRA ČESKÉ REPUBLIKY, ODBOR AZYLOVÉ A MIGRAČNÍ POLITIKY 
 
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1) At the time of the decision, there were no reports of the armed conflict 
spreading from the neighbouring Ukraine to Moldova.  
2) Even though the existence of cases of persecution, 2 in particular 
discriminatory criminal prosecution and punishment, of persons who oppose the 
state regime cannot be ruled out, the applicant does not fall into the category of 
such persons. 
3) As for the threats from unknown persons – they are to have happened back 
in 2015, and since then the applicant has returned to the country twice, not taking 
advantage of all forms of protection available (e.g., of an ombudsman or an 
independent organisation).  
4) The applicant’s application is purely self-serving, aimed at legalising his 
further stay in CZ. 
5 The applicant brought an action against the defendant’s decision, claiming that the 
defendant had failed to properly establish the facts of the case, had failed to assess 
the applicant’s application comprehensively in light of the applicant’s subjective 
concerns, and had failed to take into account the consequences of the rejection 
decision. 
6 On 9 May 2022, the Krajský soud (Regional Court) granted the Applicant’s 
application 3 for his application to be granted suspensory effect for the following 
reasons: 
1) in Moldova, the applicant would face the risk of serious harm from private 
individuals who have previously harmed him; 
2) on 8 May 2022, pro-Russian separatist troops in Transnistria were put on 
combat readiness; 
3) Moldova has withdrawn from its commitments arising from the Convention. 
7 In January 2022, Moldova declared a state of emergency due to the energy crisis. 
In that context, it notified the Council of Europe on 25 February 2022 that it was 
withdrawing from its commitments under Article 15 of the Convention, including 
the right to freedom of expression under Article 10. One day before, the 
Moldovan Parliament had declared a state of emergency of siege and war in 
response to Russia’s invasion of Ukraine. On 3 March 2022 – that is, five days 
 
2 Within the meaning of Article 9 of Directive 2011/95/EU of the European Parliament and of the 
Council of 13 December 2011 on standards for the qualification of third-country nationals or 
stateless persons as beneficiaries of international protection, for a uniform status for refugees or 
for persons eligible for subsidiary protection, and for the content of the protection granted 
(‘Directive 2011/95’). 
3 Had the applicant not filed this application, he would have ceased being an applicant for 
international protection who can lawfully remain in the territory of the Czech Republic. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-406/22 
 
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before the issuance of the defendant’s decision, which does not take that fact into 
account – Moldova again derogated from its obligations under the Convention, 
pointing to this new security threat. On 28 April 2022, it again announced an 
extension of that withdrawal, as on 21 April 2022, the Moldovan Parliament had 
extended the state of emergency until 23 June 2022. 
Analysis of the questions referred  
The referring court asks what implications there are, in terms of considering a 
country to be a safe country of origin, if:  
(a) the country withdraws from the Convention in time of emergency; 
(b) a Member State designates a country as safe only in part of its territory, 
not in its entirety; 
and, if at least one of those problems results in the country ceasing to be a safe 
country of origin, whether  
(c) an administrative court must, in proceedings concerning an application 
challenging a decision to reject an application for international protection, 
take that fact into account ex officio. 
First question referred (withdrawal from the Convention pursuant to 
Article 15) 
8 The referring court emphasises the rebuttable nature of the presumption of 
adequate protection in the country of origin, arising from Articles 36 and 37 of the 
Directive, due to urgent grounds. In doing so, a Member State must ensure that the 
rules of the Directive are implemented in their entirety . 4 It follows that, when 
reviewing a decision rejecting an application based on the concept of a safe 
country of origin, an EU court must, in the context of the right to an effective 
remedy, consider not only whether that presumption has been successfully 
rebutted by the applicant, but also whether the general inclusion of the country on 
the list of safe countries of origin was made in accordance with the Directive. 
9 Adherence to the rights and freedoms set out, inter alia, in the Convention, in 
particular those rights from which derogation is not possible pursuant to 
Article 15(2) of the Convention, 5 is set out in Annex I of the Directive, as one of 
the criteria for determining a safe country of origin. 
 
4 See judgment of the Court of Justice of 25 July 2018, A. v Migrationsverket, C 404/17, 
paragraphs 25 to 26 and 31. 
5 These include the right to life, with the exception of death resulting from lawful acts of war, 
prohibition of ill-treatment, prohibition of slavery and servitude, and prohibition of penalty 
without law. 
MINISTERSTVO VNITRA ČESKÉ REPUBLIKY, ODBOR AZYLOVÉ A MIGRAČNÍ POLITIKY 
 
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10 Withdrawal from the commitments that arise from all so-called ‘derogable’ rights 
under the Convention of course does not mean that the rights would ‘cease to 
apply’, but, by withdrawing, the state gains greater freedom to restrict them: 
a) national authorities of the State concerned gain wide discretion to 
interfere with these rights, as opposed to a regular, non-emergency 
situation. 6 
b) interference with these rights must be assessed differently, in terms of two 
criteria: (i) compliance with the scope strictly required by the urgency of the 
situation; and (ii) compatibility with other obligations under international 
law (e.g., the International Covenant on Civil and Political Rights or the UN 
Convention against Torture, to which Moldova is a party; or the Geneva 
Conventions). 7 
11 A linguistic interpretation could lead to the conclusion that, by withdrawing under 
Article 15 of the Convention, the State in question does indeed cease to be a safe 
country. By doing so, it declares that it will no longer protect the rights and 
freedoms under the Convention, as it had done up to that point. A reference should 
be made here to recital 42 of the Directive, according to which the designation of 
a third country as a safe country of origin cannot establish an absolute guarantee 
of safety for nationals of that country, and to Annex I, which lays down respect 
for derogable rights as a basis, and then adds only an emphasis on non-derogable 
rights. By analogy, reference may also be made to Protocol No 24, which provides 
that, if a Member State withdraws from its obligations under the Convention, it 
results in an obligation on the other Member States to accept for further 
processing an application for international protection lodged by a national of the 
State concerned. The withdrawing Member State thus ceases to be a safe country 
of origin for the other Member States; according to the referring court, this 
conclusion should apply all the more if the withdrawing country is a third country. 
12 The second way of interpretation offers an approach according to which a State 
does not cease to respect the rights and freedoms arising from the Convention 
even after withdrawal. The withdrawal itself does not in reality mean a complete 
‘abandonment’ of the Strasbourg mechanism for the protection of human rights. It 
is not a denunciation of the Convention, pursuant to its Article 58, but rather, an 
‘emergency regime’ of respect for these rights, with the proviso that the State in 
question cannot withdraw from certain rights even under this regime. 
 
6 See judgment of the plenary of the European Court of Human Rights of 18 January 1978 in the 
case Ireland v United Kingdom, No. 5310/71, paragraph 207 
7 See, e.g., judgement of the European Court of Human Rights of 20 March 2018 in the case 
Mehmet Hasan Altan v Turkey, No 13237/17, paragraph 94, and in the case Şahin Alpay v 
Turkey, paragraph 78) 
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13 The referring court is inclined to prefer the interpretation according to which 
withdrawal pursuant to Article 15 of the Convention automatically means that the 
country in question can no longer be regarded as a safe country of origin. 
Second question referred (designation of only a part of a country of origin as 
safe) 
14 Territorial exceptions 8 for specific geographic areas and personal exceptions 9 for 
applicants from safe countries of origin can be found in Member States’ practice: 
Cyprus, Denmark, and France consider Moldova a safe country of origin as a 
whole. CZ is the only country to designate Moldova as a safe country of origin 
with the exception of Transnistria. 
15 In the view of the referring court, the designation of a country as safe must meet 
the requirements laid down by EU law. Council Directive No 2005/85/EC of 
1 December 2005 on minimum standards on procedures in Member States for 
granting and withdrawing refugee status, 10 which preceded the present Directive, 
explicitly provided for the option of territorial and personal limitations; however, 
the present Directive does not explicitly regulate that option. The Explanatory 
Memorandum to the draft of the present Directive states that the optional 
provision that allows Member States to apply the term safe country of origin to a 
part of a country is being omitted. Hence, if the Directive, which, unlike its 
predecessor, regulates common, not only minimum standards for asylum 
proceedings, does not contain such a provision, a country in which any territory 
does not meet the conditions set out in Annex I to the Directive cannot be 
designated as a safe country of origin.  
16 A conclusion to the contrary would contravene Article 36(1) and Article 37(1) of 
the Directive and introduce a different procedural treatment for (i) a person 
coming from a part of the state in question designated as safe, who must rebut the 
presumption of safety, and if unsuccessful, he/she faces the risk of an departure 
order regardless of the specific reasons for the person’s asylum, and (ii) a person 
from the country in question to which the territorial exception applies, who may 
rely on a full review of his or her application and an automatic suspensive effect 
 
8 For example, the Czech Republic, Denmark, and Finland designate Georgia as a safe country of 
origin, except for South Ossetia and Abkhazia. Similarly, Cyprus and the Czech Republic 
continue to make an exception for Ukrainian applicants from the Crimean Peninsula and the 
Donetsk or Luhansk regions. Hungary identifies the USA as a safe country of origin, but only in 
relation to states that do not apply the death penalty. 
9 Luxembourg has designated Benin and Ghana as safe countries of origin, but only for men. In 
the case of Russia, Denmark applies exceptions for ethnic Chechens, LGBTI applicants, Russian 
Jews, and politically active persons who have faced abuse by the authorities. Denmark also 
applies a general exemption for LGBTI applicants. The Netherlands, too, has exceptions for 
specific groups of persons in Armenia, Morocco, and Tunisia. 
10 See Article 30(1) of the Directive. 
MINISTERSTVO VNITRA ČESKÉ REPUBLIKY, ODBOR AZYLOVÉ A MIGRAČNÍ POLITIKY 
 
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of any subsequent action. 11 Such differential treatment also leads to adverse 
differences in treatment in comparison with applicants from those countries that 
are not on the list of safe countries at all. Differential treatment on the basis of the 
criterion of the country of origin is contrary to Article 3 of the Geneva Convention 
Relating to the Status of Refugees. Furthermore, territorial exceptions adversely 
affect assessment of applications for international protection under Article 8 of 
Directive 2011/95/EU. 
17 The concept of safe countries of origin is intended to constitute a certain 
procedural simplification for the administrative authority conducting the 
assessment; however, Member States should be able to apply this procedural 
simplification only in the case of ‘trouble-free’ countries that (similarly to EU 
Member States) are genuinely unlikely to produce refugees or persons eligible for 
subsidiary protection. However, this trouble-free aspect is not present in those 
countries in which the state does not exercise effective control over part of their 
territory. Ukraine can be cited as an extreme example. 
18 On the other hand, the referring court understands that the view just descried is 
not unambiguous – as is, after all, documented by the practice of certain Member 
States that continue to designate certain countries as safe with territorial or 
personal exceptions – and it allows that the non-existence of an explicit reference 
to the option to apply territorial exceptions can also be read as meaning that the 
Directive does not rule them out absolutely (even though the intention of the EU 
legislator was clearly different). 
Third question referred (review ex officio) 
19 Article 46(3) of the Directive 12 plays a major role in the sphere of a common 
European asylum system, giving every applicant a right to an effective remedy 
against a decision rejecting his or her application for international protection. An 
effective remedy must – at least in a court of first instance – include a complete 
and ex nunc examination of both facts and points of law. The question arises in the 
case at hand whether the court deciding pursuant to this provision must examine 
ex officio whether the designation of a certain country as safe complies with 
Annex I to the Directive. The provision does not make an explicit reference to the 
possibility of an ex officio decision . 13 
 
11 The implications of this differential treatment are illustrated in a judgment of Canada’s Federal 
Court of 23 July 2015 in Y. Z. v. Canada (Citizenship and Immigration), 2015 FC 892 
(https://bit.ly/3yAfhzx) 
12 The Czech legislature has not yet implemented this provision in the Czech legal system. Hence, 
it has direct effect. 
13 The Directive explicitly refers to ex officio review in other situations covered by Article 46(4) 
and Article 46(6). 
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20 The issue in the Czech context is whether a court should examine, of its own 
initiative and without the applicant’s objection, whether the designation of a safe 
country of origin enshrined in the Decree complies with the Directive. And 
whether the court should decide that the defendant cannot render a decision 
pursuant to Paragraph 16(2) of the Law on Asylum, should it find that the Decree 
contravenes the Directive in that regard. 
21 According to national practice, an administrative court must ex officio take into 
account a defect in proceedings consisting of an administrative authority’s 
issuance of a decision that is precluded by the procedural framework of a 
particular case . 14 This could be hypothetically applied to a situation in which an 
authority deciding on an application for international protection conducts 
proceedings pursuant to Article 31(8)(b) of the Directive, applying the concept of 
safe country of origin, and decides that it is manifestly unfounded under 
Article 32(2) of the Directive, even though the country did not meet the conditions 
set out in Annex I to the Directive. 
22 If Article 46(3) of the Directive did not give the court the right to examine the 
Decree’s compliance with Annex I to the Directive ex officio, what else could 
effective review of the legal aspects of the case entail? The provision itself does 
not state that the review should be conducted only to the extent delimited by the 
applicant’s objection, hence not explicitly ruling out an ex officio review. Support 
for this argument can also be inferred from the principle of sincere cooperation, 
under Article 4(3) of the Treaty on the European Union. 15 
23 Hence, the referring court takes the view that, pursuant to Article 46(3) of the 
Directive, the said examination must be carried out ex officio, including the 
question whether an accelerated procedure under Article 31(8)(b) of the Directive 
should take place at all in the case at hand. 
 
14 See judgment of the Nejvyšší správní soud (Supreme Administrative Court) of 10 May 2017, 
ref. No. 2 As 163/2016-27. 
15 See Opinion of the Court of Justice 1/09, of 8 March 2011 (paragraphs 68 and 69).