Judgment of the Court (Sixth Chamber) of 19 November 2020 (request for a preliminary ruling from the Verwaltungsgericht Hannover – Germany) – EZ v Bundesrepublik Deutschland
(Case C-238/19) 1
(Reference for a preliminary ruling – Area of freedom, security and justice – Asylum policy – Directive 2011/95/EU – Conditions for granting refugee status – Refusal to perform military service – Article 9(2)(e) – Law of the country of origin which does not provide for the right to conscience objection – Protection of persons who have fled their country of origin after the expiry of the period for suspending military service – Article 9(3) – Connection between the reasons mentioned in Article 10 of that directive and the prosecution and punishment referred to in Article 9(2)(e) of that directive – Evidence)
Language of the case: German
Referring court
Verwaltungsgericht Hannover
Parties to the main proceedings
Applicant: EZ
Defendant: Bundesrepublik Deutschland
Operative part of the judgment
Article 9(2)(e) 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 must be interpreted as not precluding, where the law of the State of origin does not provide for the possibility of refusing to perform military service, that refusal from being established in a situation in which the person concerned has not formalised his or her refusal through a given procedure and has fled his or her country of origin without presenting himself or herself to the military authorities.
Article 9(2)(e) of Directive 2011/95 must be interpreted as meaning that, in respect of a conscript who refuses to perform his or her military service in a conflict but who does not know what his or her future field of military operation will be, in the context of all-out civil war characterised by the repeated and systematic commission of the crimes and acts referred to in Article 12(2) of that directive by the army using conscripts, it should be assumed that the performance of military service will involve committing, directly or indirectly, such crimes or acts, regardless of his or her field of operation.
Article 9(3) of Directive 2011/95 must be interpreted as requiring there to be a connection between the reasons mentioned in Article 10 of that directive and the prosecution and punishment referred to in Article 9(2)(e) of that directive.
Article 9(2)(e) in conjunction with Article 9(3) of Directive 2011/95 must be interpreted as meaning that the existence of a connection between the reasons mentioned in Article 2(d) and Article 10 of that directive and the prosecution and punishment for refusal to perform the military service referred to in Article 9(2)(e) of that directive cannot be regarded as established solely because that prosecution and punishment are connected to that refusal. Nevertheless, there is a strong presumption that refusal to perform military service under the conditions set out in Article 9(2)(e) of that directive relates to one of the five reasons set out in Article 10 thereof. It is for the competent national authorities to ascertain, in the light of all the circumstances at issue, whether that connection is plausible.
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1 OJ C 206, 17.6.2019.