"Never talked about conspiracies, but there is a disregard for the popular vote. Forward on Albania". This is what Giorgia Meloni said, during a long interview at the "Il Tempo" party, and as a consequence of the heated debate on the Albanian issue and on the migration policies undertaken by her government. Well. Whatever one might say, the debate on the renewed, if we wanted to call it that, European migration policy and, in particular, on the management of the so-called repatriations, continues to hold sway in terms of potential and mentioned innovative solutions to contain irregular immigration. And if, on the one hand, the progressive groups in the Strasbourg chamber have contested the agreement between Italy and Albania supported by the Italian Prime Minister Giorgia Meloni aimed at the so-called externalization of asylum procedures because it would seem likely to incur a violation of community and international law according to the socialists, on the other hand, it would be a costly and ineffective model for the liberals. But, in what sense would there be “indifference” with respect to the popular vote? “Indifference” of the popular vote with respect to the political line taken on the matter? On whose part if it is true, as it would appear to be true, that the Italian legal system has long since implemented important directives on asylum? In what way does this Protocol, which also appears to be welcomed by Ursula Von der Leyen, harmonize with the aforementioned directives on asylum?

The questions that are brought to general attention, without any claim of immediate solution, certainly seem to impose important reflections since, even regardless of the political thought of individuals, the issue concerning the management of migration policies should find shared solutions and as such promptly practicable in compliance with the detailed reference legislation. Especially if one wants to consider that the doubts and contrasts that have emerged in recent times have appeared to concern not so much the need in itself to offer a response to the problem of managing migratory flows and especially irregular immigration, but rather the methods of intervention (the contents of the Italy-Albania Protocol) to offer a response to the problem. In the meantime, it would seem only appropriate to point out that the controversial Italy-Albania Protocol, ratified with law number 14 of the current year 2024, would be aimed, as in fact it would appear, at allowing Italy to evaluate the various applications for international protection on territory other than the national one, that is, on Albanian territory, but under the aegis of Italian jurisdiction.

The circumstance would appear to be at least singular in its significant consistency, since both the exercise of jurisdiction itself and, even, the applicability of Italian law to the procedures referred to in the Protocol, precisely because they are genetically extraterritorial to be located in Albania, does not fail, to date, to bring to the general attention, and above all to that of legal practitioners, certain questions that if not entirely unresolved, nevertheless appear suitable to give rise to different interpretations also with specific reference to what have been until now the hierarchical relations, as regards the prevalence of the sources of law, between the internal legal system and the law of the European Union.

To what extent does the complex set of regulations that underpin the Italy-Albania Protocol harmonize with current Italian and European law? Does it appear compatible? Does a common asylum system based on the so-called Albania model appear even abstractly conceivable and economically sustainable if realistically applied by all twenty-seven Member States of the Union? The perplexities and doubts of varying consistency appear in all their plausibility, even beyond the political color of the interpreters who from time to time find themselves having to express themselves on the point. Because, if ideally, on a political level, the aforementioned Protocol would seem to fit within a programmatic thread aimed at giving effect, in some way, to an electoral promise, on a legal regulatory level it appears to introduce multiple coordination issues between supranational discipline of a higher rank and national discipline. Even more so when, with a well-known Sentence issued in 1984, our Constitutional Court established that the rules of Community origin must be applied regardless of the possible existence of national rules conflicting with the European ones, and therefore clearly affirmed the primacy of European Union law over Italian law. And furthermore, in accordance with Article 101, second paragraph, of the Constitution, in fact, Judges are subject only to the Law.

Giuseppina Di Salvatore – Lawyer, Nuoro

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