Bundesrepublik Deutschland (Notion de "menaces graves et individuelles") (Common policy on asylum and subsidiary protection - Concept of 'serious and individual threat' - Judgment) [2021] EUECJ C-901/19 (10 June 2021)

Judgment This request for a preliminary ruling concerns the interpretation of Articles 2(f) and 15(c) 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 (OJ 2011 L 337, p. 9). The request has been made in two sets of proceedings brought by CF and DN, two Afghan nationals, against the Bundesrepublik Deutschland (Federal Republic of Germany), represented by the Bundesminister des Innern, für Bau und Heimat (Federal Minister for the Interior, Building and Community, Germany), represented by the head of the Bundesamt für Migration und Flüchtlinge (Federal Office for Migration and Refugees, Germany), concerning the rejection by the latter of the asylum applications of CF and DN. Legal context EU law Recitals 6, 12, 13 and 33 to 35 of Directive 2011/95 state: ‘(6) The Tampere conclusions … provide that rules regarding refugee status should be complemented by measures on subsidiary forms of protection, offering an appropriate status to any person in need of such protection. … (12) The main objective of this Directive is, on the one hand, to ensure that Member States apply common criteria for the identification of persons genuinely in need of international protection, and, on the other hand, to ensure that a minimum level of benefits is available for those persons in all Member States. (13) The approximation of rules on the recognition and content of refugee and subsidiary protection status should help to limit the secondary movement of applicants for international protection between Member States, where such movement is purely caused by differences in legal frameworks. … (33) Standards for the definition and content of subsidiary protection status should also be laid down. Subsidiary protection should be complementary and additional to the refugee protection enshrined in the [Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951]. (34) It is necessary to introduce common criteria on the basis of which applicants for international protection are to be recognised as eligible for subsidiary protection. Those criteria should be drawn from international obligations under human rights instruments and practices existing in Member States. (35) Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.’ Article 2 of that directive, entitled ‘Definitions’, provides: ‘For the purposes of this Directive the following definitions shall apply: (a) “international protection” means refugee status and subsidiary protection status as defined in points (e) and (g); (b) “beneficiary of international protection” means a person who has been granted refugee status or subsidiary protection status as defined in points (e) and (g); … (f) “person eligible for subsidiary protection” means a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) does not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country; (g) “subsidiary protection status” means the recognition by a Member State of a third-country national or a stateless person as a person eligible for subsidiary protection; …’ Article 4 of that directive, entitled ‘Assessment of facts and circumstances’, provides: ‘1. Member States may consider it the duty of the applicant to submit as soon as possible all the elements needed to substantiate the application for international protection. In cooperation with the applicant, it is the duty of the Member State to assess the relevant elements of the application. … 3. The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application …; (b) the relevant statements and documentation presented by the applicant including information on whether the applicant has been or may be subject to persecution or serious harm; (c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant’s personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; … 4. The fact that an applicant has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, is a serious indication of the applicant’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. …’ Article 8 of that directive, entitled ‘Internal protection’, is worded as follows: ‘1. As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin, he or she: (a) has no well-founded fear of being persecuted or is not at real risk of suffering serious harm; or (b) has access to protection against persecution or serious harm as defined in Article 7; and he or she can safely and legally travel to and gain admittance to that part of the country and can reasonably be expected to settle there. 2. In examining whether an applicant has a well-founded fear of being persecuted or is at real risk of suffering serious harm, or has access to protection against persecution or serious harm in a part of the country of origin in accordance with paragraph 1, Member States shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant in accordance with Article 4. …’ As provided in Article 15 of Directive 2011/95, entitled ‘Serious harm’: ‘Serious harm consists of: (a) the death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.’ Article 18 of that directive, entitled ‘Granting of subsidiary protection status’, states: ‘Member States shall grant subsidiary protection status to a third-country national or a stateless person eligible for subsidiary protection in accordance with Chapters II and V.’ German law Directive 2011/95 was transposed into German law by the Asylgesetz (Law on Asylum, BGBl. 2008 I p. 1798) in the version in force at the material time (‘the AsylG’). Paragraph 3e of the AsylG, entitled ‘Internal Protection’, lays down the conditions for the existence of an alternative form of internal protection and provides: ‘(1) A foreign national shall not be granted refugee status if he or she: 1. has no well-founded fear of being persecuted or access to protection against persecution in accordance with Paragraph 3d in a part of the country of origin and 2. can safely and legally travel to and gain admittance to that part of the country and can reasonably be expected to settle there. (2) In examining whether a part of the country of origin meets the conditions of subparagraph 1, the general circumstances prevailing in that part of the country and the personal circumstances of the foreign national shall be taken into account in accordance with Article 4 of Directive 2011/95/EU when deciding on the application. To that end, precise and up-do-date information shall be obtained from relevant sources, such as the United Nations High Commissioner for Refugees and the European Asylum Support Office.’ Paragraph 4(1) and (3) of the AsylG, transposing Articles 2 and 15 of Directive 2011/95, lays down the conditions for the granting of subsidiary protection as follows: ‘(1) A foreign national shall be eligible for subsidiary protection where there are serious and substantial grounds for believing that he or she is at risk of suffering serious harm in his or her country of origin. Serious harm consists of: 1. the death penalty or execution; 2. torture or inhuman or degrading treatment or punishment; or 3. serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict. … (3) Paragraphs 3c to 3e shall apply mutatis mutandis . Persecution, protection against persecution or the well-founded fear of persecution is replaced by the risk of serious harm, protection against serious harm and the real risk of serious harm; refugee status is replaced by subsidiary protection.’ The facts in the main proceedings and the questions referred for a preliminary ruling CF and DN are two Afghan civilians from the province of Nangarhar. The Federal Office for Migration and Refugees rejected their asylum applications. Actions brought by the applicants before the administrative courts of Karlsruhe and Freiburg (Germany) were unsuccessful. CF and DN brought an appeal before the Verwaltungsgerichtshof Baden-Württemberg (Higher Administrative Court, Baden-Württemberg, Germany), requesting that they be granted subsidiary protection in accordance with Paragraph 4 of the AsylG. In that context, that court seeks clarification of the criteria to be applied for the purposes of granting subsidiary protection in cases of a serious and individual threat to a civilian’s life or person by reason of ‘indiscriminate violence in situations of … armed conflict’, within the meaning of Article 15(c), read in conjunction with Article 2(f) of Directive 2011/95. Despite the clarification provided in its judgment of 17 February 2009, Elgafaji (C‑465/07, EU:C:2009:94, paragraph 35), the Court has not yet ruled on the criteria to be applied in determining the level of violence necessary in order to establish the existence of a serious and individual threat by reason of indiscriminate violence in situations of armed conflict. Furthermore, the case-law handed down by other courts in this area is inconsistent. Whereas some have conducted a comprehensive assessment based on all the circumstances of the case, others have predicated their approach on an analysis based primarily on the number of civilian casualties. In particular, the referring court observes that, in order to find that a person who is not specifically targeted, by reason of factors particular to his or her personal circumstances, faces a serious and individual threat, the case-law of the Bundesverwaltungsgericht (Federal Administrative Court, Germany) on the first sentence of Paragraph 4(1) and point 3 of the second sentence of Paragraph 4(1) of the AsylG, which transposes Article 15(c) of Directive 2011/95, read in conjunction with Article 2(f) of that directive, diverges significantly from the case-law based on a comprehensive assessment of the particular circumstances of each individual case, as applied by the courts of other Member States and by the European Court of Human Rights. According to the Bundesverwaltungsgericht (Federal Administrative Court), before any finding of serious and individual threats can be made, it is necessary to conduct a quantitative assessment of the ‘risk of death and injury’, expressed by the ratio between the number of casualties in the relevant area and the total number of individuals composing the population of that area, which must reach a certain minimum threshold. If that threshold is not reached, there is no need for any further assessment of the level of risk, and a serious and individual threat cannot be found to exist even on the basis of a comprehensive assessment of the specific circumstances of the case. As regards the situation of CF and DN, the referring court states that it is not satisfied that they are specifically affected by reason of their personal circumstances by the violence prevailing in the province of Nangarhar. However, in view of the general security situation in that province, and in particular the fact that the region is the scene of fighting between various highly fragmented parties to the conflict (including terrorist groups), which are integrated in the civilian population, and that no party is in a position effectively to control the region or to protect the civilian population who are the victims of insurgents and government forces, the referring court considers that if CF and DN were returned to the province of Nangarhar, they would, solely on account of their presence, face a real risk of serious and individual threat by reason of indiscriminate, conflict-related violence. Furthermore, in view of their particularly vulnerable profile, if CF and DN were to return to Afghanistan, they would also not have an acceptable alternative refuge within the country, given that it would generally be unreasonable for them to settle in other conceivable places (such as Kabul, Herat and Mazar-e Sharif). Thus, according to the referring court, on the basis of a comprehensive assessment that also included other risk-substantiating circumstances, the current level of violence prevailing in the province of Nangarhar would have to be regarded as being so high that the applicants in the main proceedings, to whom no internal protection is available, would, solely by reason of their presence, face a serious threat on the territory in question. However, if a finding of serious and individual threat depended principally on the number of civilian casualties, the applications of those applicants in the main proceedings for subsidiary protection would have to be rejected. In those circumstances, the Verwaltungsgerichtshof Baden-Württemberg (Higher Administrative Court, Baden-Württemberg) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Do Article 15(c) and Article 2(f) of Directive 2011/95 preclude the interpretation and application of a provision of national law whereby a serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of armed conflict (in the sense that a civilian would, solely on account of his or her presence in the relevant region, face a real risk of being subject to such a threat), in cases in which that person is not specifically targeted by reason of factors particular to his or her personal circumstances, can only exist where a minimum number of civilian casualties (killed and injured) has already been established? (2) If the answer to Question 1 is in the affirmative: must the assessment as to whether a threat exists in that sense be conducted on the basis of a comprehensive appraisal of all the circumstances of the individual case? If not: which other requirements of EU law apply to that assessment?’ Consideration of the questions referred The first question By its first question, the referring court asks, in essence, whether Article 15(c) of Directive 2011/95 must be interpreted as precluding the interpretation of national legislation according to which, where a civilian is not specifically targeted by reason of factors particular to his or her personal circumstances, a finding of serious and individual threat to that civilian’s life or person by reason of ‘indiscriminate violence in situations of … armed conflict’, within the meaning of that provision, is subject to the condition that the ratio between the number of casualties in the relevant area and the total number of individuals composing the population of that area reach a fixed threshold. In order to answer that question, it should be noted that Directive 2011/95, which was adopted on the basis, inter alia, of Article 78(2)(b) TFEU, seeks, inter alia, to establish a uniform system of subsidiary protection. In that regard, it is apparent from recital 12 of that directive that one of its main objectives is to ensure that all Member States apply common criteria for the identification of persons genuinely in need of international protection (see judgment of 23 May 2019, Bilali , C‑720/17, EU:C:2019:448 , paragraph 35 and the case-law cited). In that regard, it is apparent from Article 18 of Directive 2011/95, read in conjunction with the definition of ‘person eligible for subsidiary protection’ in Article 2(f) of that directive, and that of ‘subsidiary protection status’ in Article 2(g) thereof, that the subsidiary protection status referred to in that directive must, in principle, be granted to a third-country national or stateless person who faces a real risk of suffering serious harm, within the meaning of Article 15 of that directive, if returned to his or her country of origin or to the country of his or her former habitual residence (see judgment of 23 May 2019, Bilali , C‑720/17, EU:C:2019:448 , paragraph 36 and the case-law cited). It should also be borne in mind that, as the Advocate General observed in point 16 of his Opinion, Directive 2011/95 repealed and replaced Council Directive 2004/83/EC of 29 April 2004 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 (OJ 2004 L 304, p. 12), with effect from 21 December 2013, and that that change of directive did not result in any change in the legal rules for granting subsidiary protection or as regards the numbering of the relevant provisions. Thus, the wording of Article 15(c) of Directive 2011/95 is strictly identical to that of Article 15(c) of Directive 2004/83, with the result that the case-law concerning the latter provision is relevant to the interpretation of the former (see, to that effect, judgment of 13 January 2021, Bundesrepublik Deutschland (Refugee status of a stateless person of Palestinian origin) , C‑507/19, EU:C:2021:3 , paragraph 37). Article 15 of Directive 2011/95 provides for three types of ‘serious harm’ which, when substantiated, entitle the person subject to them to the grant of subsidiary protection. As regards the grounds set out in Article 15(a), namely ‘death penalty or execution’, and in Article 15(b), namely the risk of ‘torture or inhuman treatment’, such ‘serious harm’ covers situations in which the applicant for subsidiary protection is specifically exposed to the risk of a particular type of harm (judgment of 17 February 2009, Elgafaji , C‑465/07, EU:C:2009:94, paragraph 32). By contrast, as the Court has clarified, the harm defined in Article 15(c) of that directive, consisting of a ‘serious and individual threat to [the applicant’s] life or person’ covers a ‘more general’ risk of harm than those referred to in Article 15(a) and (b). Reference is thus made, more generally, to a ‘threat to a civilian’s life or person’ rather than to specific acts of violence. Furthermore, that threat is inherent in a general situation of armed conflict, giving rise to ‘indiscriminate violence’, which implies that it may extend to people irrespective of their personal circumstances (judgment of 17 February 2009, Elgafaji , C‑465/07, EU:C:2009:94, paragraphs 33 and 34). In other words, as the Advocate General observed in point 20 of his Opinion, the finding of a ‘serious and individual threat’, within the meaning of Article 15(c) of Directive 2011/95, is not conditional on the applicant for subsidiary protection proving that he or she is specifically affected by reason of factors particular to his or her personal circumstances. In that context, the word ‘individual’ must be understood as covering harm to civilians irrespective of their identity, where the degree of indiscriminate violence characterising the armed conflict taking place – assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred – reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his or her presence on the territory of that country or region, face a real risk of being subject to the serious threat referred to in Article 15(c) of that directive (judgment of 17 February 2009, Elgafaji , C‑465/07, EU:C:2009:94, paragraph 35). In the present case, as has been stated in paragraph 18 of the present judgment, the referring court is not satisfied that the applicants in the main proceedings are specifically affected by reason of their personal circumstances by the violence prevailing in the province of Nangarhar. However, it considers that, in view of the general security situation in that province, the applicants would, solely on account of their presence, face a real risk of a serious and individual threat as a result of indiscriminate, conflict-related violence if they were returned to it. However, as has also been recalled in paragraph 17 of the present judgment, pursuant to the case-law of the Bundesverwaltungsgericht (Federal Administrative Court), before any finding of serious and individual threat can be made, it is necessary to conduct a quantitative assessment of the ‘risk of death and injury’, expressed by the ratio between the number of casualties in the relevant area and the total number of individuals composing the population of that area, which must reach a certain minimum threshold. If that minimum threshold is not reached, no comprehensive assessment of the specific circumstances of the case is carried out. It must be held, in that regard, on the one hand, that the criterion adopted by the Bundesverwaltungsgericht (Federal Administrative Court), according to which a finding of ‘serious and individual threat’, within the meaning of Article 15(c) of Directive 2011/95, presupposes that the number of casualties already established, in the light of the population as a whole in the region concerned, has reached a fixed threshold, may, admittedly, be regarded as relevant for the purposes of determining whether such a threat exists. If the actual victims of the violence perpetrated by the parties to the conflict against the lives or persons of civilians in the region concerned constitute a high proportion of the total number of civilians living in that region, this is likely to lead to the conclusion that there might be further civilian casualties in that region in the future. Such a finding thus makes it possible to establish the existence of the serious threat referred to in Article 15(c) of Directive 2011/95. However, it should be noted, on the other hand, that that same finding cannot constitute the only determining factor for the purposes of finding that a ‘serious and individual threat’ exists, within the meaning of Article 15(c) of Directive 2011/95. In particular, the absence of such a finding cannot, in itself, be sufficient to exclude systematically and in all circumstances the existence of a risk of such a threat, within the meaning of that provision, and, therefore, lead automatically and without exception to subsidiary protection being ruled out. Such an approach would be at odds, in the first place, with the objectives of Directive 2011/95, which is intended to confer subsidiary protection on any person requiring such protection. In particular, as is apparent from recitals 6 and 12 of that directive, the main objective of that directive is, inter alia, to ensure that Member States apply common criteria for the identification of persons genuinely in need of international protection by offering them an appropriate status. The systematic application by the competent authorities of a Member State of a single quantitative criterion, which may be of questionable reliability in view of the specific difficulty of identifying objective and independent sources of information close to areas of armed conflict, such as a minimum number of civilian casualties injured or deceased, in order to refuse the grant of subsidiary protection, is likely to lead national authorities to refuse to grant international protection in breach of the Member States’ obligation to identify persons genuinely in need of that subsidiary protection. In the second place, such an interpretation would be likely to prompt applicants for international protection to travel to Member States which do not apply the criterion of a fixed threshold of casualties already established or which apply a lower threshold in that respect, which could encourage a practice of forum shopping aimed at circumventing the rules set up by Directive 2011/95. However, it should be recalled that, as stated in recital 13 of that directive, the approximation of rules on the recognition and content of refugee and subsidiary protection status should, inter alia, help to ‘limit the secondary movement of applicants for international protection between Member States’, where such movement is purely caused by differences in legal frameworks of the Member States. In the light of all of the foregoing considerations, the answer to the first question is that Article 15(c) of Directive 2011/95 must be interpreted as precluding the interpretation of national legislation according to which, where a civilian is not specifically targeted by reason of factors particular to his or her personal circumstances, a finding of serious and individual threat to that civilian’s life or person by reason of ‘indiscriminate violence in situations of … armed conflict’, within the meaning of that provision, is subject to the condition that the ratio between the number of casualties in the relevant area and the total number of individuals composing the population of that area reach a fixed threshold. The second question By its second question, the referring court asks, in essence, whether Article 15(c) of Directive 2011/95 must be interpreted as meaning that, in order to determine whether there is a ‘serious and individual threat’, within the meaning of that provision, a comprehensive appraisal of all the circumstances of the individual case is required, and, if that is not the case, what other requirements must be fulfilled for that purpose. In order to answer that question, it must be noted, as a preliminary point, as the Advocate General, in essence, observed in point 56 of his Opinion, that the concept of ‘serious and individual threat’ to the life or person of the applicant for subsidiary protection, within the meaning of Article 15(c) of Directive 2011/95, must be interpreted broadly. Thus, in order to determine whether there is a ‘serious and individual threat’, within the meaning of Article 15(c) of Directive 2011/95, a comprehensive appraisal of all the relevant circumstances of the individual case is required, in particular those which characterise the situation of the applicant’s country of origin. As regards an application for international protection made under Article 15(c) of Directive 2011/95, even if that application does not rely on factors specific to the applicant’s situation, it follows from Article 4(3) of that directive that such an application must be subject to an individual assessment, in respect of which a whole series of factors must be taken into account. Those factors include, in particular, under Article 4(3)(a) of that directive, ‘all relevant facts as they relate to the country of origin at the time of taking a decision on the application’. More specifically, as the Advocate General observed, in essence, in points 56 and 59 of his Opinion, the elements to be taken into account in assessing whether there is a real risk of serious harm, within the meaning of Article 15(c) of Directive 2011/95 may also include the intensity of the armed confrontations, the level of organisation of the armed forces involved, and the duration of the conflict (see, to that effect, judgment of 30 January 2014, Diakité , C‑285/12, EU:C:2014:39 , paragraph 35), as well as other elements such as the geographical scope of the situation of indiscriminate violence, the actual destination of the applicant in the event that he or she is returned to the relevant country or region and potentially intentional attacks against civilians carried out by the parties to the conflict. It follows that the systematic application by the competent authorities of a Member State of a criterion, such as a minimum number of civilian casualties injured or deceased, in order to determine the intensity of an armed conflict, without examining all the relevant circumstances which characterise the situation of the country of origin of the applicant for subsidiary protection, is contrary to the provisions of Directive 2011/95, in so far as it may lead those authorities to refuse to grant that protection in breach of the Member States’ obligation to identify persons genuinely in need of that protection. In the light of the foregoing considerations, the answer to the second question is that Article 15(c) of Directive 2011/95 must be interpreted as meaning that, in order to determine whether there is a ‘serious and individual threat’, within the meaning of that provision, a comprehensive appraisal of all the circumstances of the individual case, in particular those which characterise the situation of the applicant’s country of origin, is required. Costs Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Third Chamber) hereby rules: 1. Article 15(c) 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 precluding the interpretation of national legislation according to which, where a civilian is not specifically targeted by reason of factors particular to his or her personal circumstances, a finding of serious and individual threat to that civilian’s life or person by reason of ‘indiscriminate violence in situations of … armed conflict’, within the meaning of that provision, is subject to the condition that the ratio between the number of casualties in the relevant area and the total number of individuals composing the population of that area reach a fixed threshold. 2. Article 15(c) of Directive 2011/95 must be interpreted as meaning that, in order to determine whether there is a ‘serious and individual threat’, within the meaning of that provision, a comprehensive appraisal of all the circumstances of the individual case, in particular those which characterise the situation of the applicant’s country of origin, is required. [Signatures] * Language of the case: German. © European Union The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice . This electronic version is not authentic and is subject to amendment. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII