Language of document : ECLI:EU:C:2010:661

Joined Cases C-57/09 and C-101/09

Bundesrepublik Deutschland

v

B and D

(Reference for a preliminary ruling from the Bundesverwaltungsgericht)

(Directive 2004/83/EC – Minimum standards for the grant of refugee status or of subsidiary protection – Article 12 – Exclusion from refugee status – Article 12(2)(b) and (c) – Notion of ‘serious non-political crime’ – Notion of ‘acts contrary to the purposes and principles of the United Nations’ – Membership of an organisation involved in terrorist acts – Subsequent inclusion of that organisation in the list of persons, groups and entities which forms the Annex to Common Position 2001/931/CFSP – Individual responsibility for part of the acts committed by that organisation – Conditions – Right of asylum by virtue of national constitutional law – Compatibility with Directive 2004/83/EC)

Summary of the Judgment

1.        Preliminary rulings – Jurisdiction of the Court – Limits – Interpretation sought as regards the applicability of provisions of European Union law arising from a renvoi made by national law to an international agreement, the terms of which are restated in those provisions – Jurisdiction to give that interpretation

(Art. 68 EC and 234 EC)

2.        Visas, asylum, immigration – Asylum policy – Refugee status or status of subsidiary protection – Directive 2004/83 – Exclusion from status

(Council Common Position 2001/931; Council Directive 2004/83, Art. 12(2)(b) and (c))

3.        Visas, asylum, immigration – Asylum policy – Refugee status or status of subsidiary protection – Directive 2004/83 – Exclusion from status

(Council Directive 2004/83, Art. 12(2)(b) and (c))

4.        Visas, asylum, immigration – Asylum policy – Refugee status or status of subsidiary protection – Directive 2004/83 – Exclusion from status

(Council Directive 2004/83, Art. 12(2)(b) and (c))

5.        Visas, asylum, immigration – Asylum policy – Refugee status or status of subsidiary protection – Directive 2004/83 – Exclusion from status

(Council Directive 2004/83, Arts 3 and 12(2))

1.        Where the questions referred by national courts concern the interpretation of a provision of Community law, the Court is in principle obliged to give a ruling. In particular, neither the wording of Articles 68 EC and 234 EC nor the aim of the procedure established by Article 234 EC indicates that those responsible for framing the EC Treaty intended to exclude from the jurisdiction of the Court references for a preliminary ruling on a directive in the specific case in which the national law of a Member State makes a renvoi to the content of provisions of an international agreement reproduced in that directive, in order to determine the rules applicable to a situation purely internal to that State. In such a case, it is clearly in the interests of the Union that, in order to forestall future differences of interpretation, the provisions of that international agreement reproduced in national law and in Union law should be given a uniform interpretation, irrespective of the circumstances in which they are to apply.

(see para. 71)

2.        Article 12(2)(b) and (c) of Council Directive 2004/83 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted must be interpreted as meaning that:

– the fact that a person has been a member of an organisation which, because of its involvement in terrorist acts, is included in the list forming the Annex to Common Position 2001/931 and that that person has actively supported the armed struggle waged by that organisation does not automatically constitute a serious reason for considering that that person has committed ‘a serious non-political crime’ or ‘acts contrary to the purposes and principles of the United Nations’;

– the finding, in such a context, that there are serious reasons for considering that a person has committed such a crime or has been guilty of such acts is conditional on an assessment on a case-by-case basis of the specific facts, with a view to determining whether the acts committed by the organisation concerned meet the conditions laid down in those provisions and whether individual responsibility for carrying out those acts can be attributed to the person concerned, regard being had to the standard of proof required under Article 12(2) of the directive.

There is no direct relationship between Common Position 2001/931 and Directive 2004/83 in terms of the aims pursued, and it is not justifiable for a competent authority, when considering whether to exclude a person from refugee status pursuant to Article 12(2) of the directive, to base its decision solely on that person’s membership of an organisation included in a list adopted outside the framework set up by Directive 2004/83 consistently with the 1951 Geneva Convention.

(see paras 89, 99, operative part 1)

3.        Exclusion from refugee status pursuant to Article 12(2)(b) or (c) of Directive 2004/83 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted is not conditional on the person concerned’s representing a present danger to the host Member State.

(see para. 105, operative part 2)

4.        The exclusion of a person from refugee status pursuant to Article 12(2)(b) or (c) of Directive 2004/83 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted is not conditional on an assessment of proportionality in relation to the particular case.

(see para. 111, operative part 3)

5.        Article 3 of Directive 2004/83 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted must be interpreted as meaning that Member States may grant a right of asylum under their national law to a person excluded from refugee status pursuant to Article 12(2) of the directive, provided that that other kind of protection does not entail a risk of confusion with refugee status within the meaning of the directive.

(see para. 121, operative part 4)