CJEU - Case C 901/19, CF and DN v Bundesrepublik Deutschland

Facts:

The applicants fled their province in Afghanistan due to armed conflict and sought asylum in Germany. Their application for asylum failed and their actions brought before the German administrative courts were also unsuccessful. As such, the applicants brought an appeal before the Verwaltungsgerichtshof Baden- Württemberg (Higher Administrative Court, Baden-Württemberg), requesting that they be granted subsidiary protection.

The Higher Court noted that, in accordance with German law, before the granting of subsidiary protection a quantitative assessment of the ‘risk of death and injury’ must be conducted. This assessment analyses the ratio between the number of casualties in the relevant area and the total number of individuals composing the population of that area. Only when this ratio exceeds a specific threshold can the individual qualify for protection. Notably this assessment is not practiced elsewhere, and Article 15 of the Directive 2011/95 aims to ensure that all Member States apply common criteria for the identification of persons in need of international protection. As such, the German court decided to refer the following questions to the Court of Justice for a preliminary ruling:

1.      Does Article 15(c) of Directive 2011/95 preclude the interpretation and application of German national law, which requires a quantitative assessment of the ‘risk of death and injury’?

If the answer to Question 1 is in the affirmative: must the assessment 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?’ 

Decision & reasoning:

The first question

The Court asserted that the application of the German approach would go against the objective of Directive 2011/95, which is intended to confer subsidiary protection on any person requiring such protection. Moreover, the practice of the German approach would likely prompt applicants of international protection to travel to Member States which do not apply the same criterion, or which apply a lower threshold. This would potentially encourage a practice of ‘forum shopping’ [para 36].

The Court further clarified that Article 15(c) of the directive covers a more general risk of harm. This risk is not conditional on the applicant proving that they are specifically affected by conflict. As such, it refers to a more general ‘threat to a civilian’s life’, which is prevalent in general situations of armed conflict [para.26].

Therefore, while the quantitative assessment used by the German Courts may aid in determining whether a threat exists, the findings cannot constitute the only determining factor for the purposes of Article 15(c).

In the light of the above considerations, the Court concluded that the answer to the first question is that Article 15(c) of Directive 2011/95 must be interpreted as precluding national legislation that strictly employs a quantitative approach in the assessment of the existence of threat due to indiscriminate violence.

The second question

The Court noted that the concept of ‘serious and individual threat’ within the meaning of Article 15(c) of Directive 2011/95, must be interpreted broadly.

Thus, to determine whether there is a ‘serious and individual threat’, within the meaning of Article 15(c), a comprehensive appraisal of all the relevant circumstances of the individual case is required [para 40].

As such, the answer to the second question is that a comprehensive appraisal of all the circumstances of the individual case, and in particular those which characterise the situation of the applicant’s country of origin, is required.

Outcome:

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 characterize the situation of the applicant’s country of origin, is required.