Author
The following section contains an overview of incompatibilities in transposition of the CEAS in national legislation:
| Directive | Provision | Domestic law provision | Non-transposition or incorrect transposition |
| Directive 2011/95/EU
Recast Qualification Directive |
Article 16 | Article 15 (2 – ter) Qualification Decree | According to Article 15 (2 ter) any return to the country of origin is relevant for cessation of subsidiary protection, if not justified by serious and proven reasons. This relevance is not accorded by the Recast Qualification Directive |
| Directive 2013/32/EU
Recast Asylum Procedures Directive |
Article 40
Article 41 and Article 46 (5) (6) and (8)
Articles 43 and 31 (8)
Article 11 (2)
|
Article 29 bis Procedure Decree
Article 35 bis (5) Procedure Decree
Article 28 bis (1 ter) Procedure Decree
Article 9(2-bis) Procedure Decree
|
Article 29 bis allows to automatically avoid the exam of the subsequent asylum application in cases not included in the Procedures Directive
Need to leave the national territory after inadmissibility decision issued on a first subsequent application: Article 41 of Directive 2013/32 / EU does not include this hypothesis in cases where it is not possible to await on the national territory the judge’s decision on the suspension request. Article 46 states the right to an effective remedy does not exclude the right to await the decision on the request for suspension in these cases.
Border procedure: the attempt to evade border controls is not included in the acceleration grounds laid down in Article 31(8) of the Directive which could lead to the application of a border procedure. Also, the requirement of Article 43 of the Directive to allow the applicant to enter the territory if the determining authority has not taken a decision within 4 weeks has not been incorporated in the Procedure Decree.
In case of asylum seekers coming from a safe country of origin, the decision rejecting the application is based on the fact that the person concerned has not shown that there are serious reasons to believe that the designated safe country of origin is not safe in relation to his or her particular situation. The law allows TC not to motivate the reasons of rejections but to only refer to the country of origin
|
| Directive 2013/33/EU
Recast Reception Conditions Directive |
Article 20 (1)
Article 20 (4)
Article 20 (5) and (6)
Article 8 (1) and (3)
|
Article 23 Reception Decree
Article 6 (3 bis) Reception Decree
|
The law generally provides for the withdrawal of reception conditions without any progression and proportion to the contested behaviour.
Also, the Italian law does not oblige authorities to ascertain, before issuing the withdrawal decision, that the asylum seeker can maintain dignified standards of living (Article 20 (5) of the Directive)
The law allowing detention of asylum seekers for identification purposes does not specify in which cases the need for identification arises, thus linking detention not to the conduct of the applicant but to an objective circumstance such as the lack of identity documents. According to ASGI, the new detention ground represents a violation of the prohibition on detention of asylum seekers for the sole purpose of examining their application under Article 8(1) of the recast Reception Conditions Directive. Additionally, it seems to violate Article 8(3) of the recast Reception Conditions Directive, according to which the grounds for detention shall be laid down in national law. |