The case concerned the interpretation of Articles 2(f) and 15(c) of Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection (hereafter recast Qualification Directive).
The national court referred two questions, concerning: i) the interpretation of article 15(c) in respect of how the degree of arbitrary violence in an armed conflict should be measured and ii) whether the assessment as to the existence of a serious and individual threat should be conducted on the basis of a comprehensive appraisal of all the circumstances of the individual case or should be based on determined factors.
The Court held that the interpretation of Article 15(c) must preclude the use of the threshold of minimum civilian casualties as the only determining factor but should be based on a comprehensive appraisal of all the circumstances of the individual case.
- 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 - Articles 2(f) and 15(c), Recitals 6, 12, 13 and 33 to 35 and Articles 4, 8, 18
- Asylgesetz (“AsylG“) Paragraph 3(e), 4(1) and 4(3)
The applicants, two Afghan civilians, applied for asylum in Germany on the basis that they were subject to “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 15(c)) but their applications were denied. The recast Qualification Directive was transposed into German Law, however due to the addition of the criteria of the threshold of minimum casualties, domestic law diverges significantly from the case-law as applied by the courts of other Member States and by the European Court of Human Rights.
As a result of that uncertainty, the national court stayed proceedings and referred the following questions to the CJEU:
(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?
The applicants in the main proceedings argued that they should be granted subsidiary protection based on Article 15(c) i.e. a “serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.” Indeed the province of Nangarhar in Afghanistan is one of general insecurity and violence.
The referring court was not convinced that the applicants were personally affected by violence in Afghanistan, however due to the general situation of violence in Nangarhar, it is possible that they would be exposed to a serious risk of violence by virtue of their presence on the territory if they were to return.
Therefore, if the “serious threat” in Article 15(3) were to be interpreted based on a comprehensive assessment of the circumstances, the applicants would be eligible for international protection. However, if it were to be based on the number of civilian casualties, their application would be rejected. Due to the uncertainty of the correct interpretation, the referring court decided to stay proceedings and refer its questions to the Court of Justice of the European Union (CJEU).
1st question :
In respect of question 1, the Court reiterated that one of the objectives of the recast Qualification Directive is to ensure that Member States apply a harmonized standard regarding people in need of international protection. The Court noted that the “individual” who may face the “serious and individual threat” must be found to be in a situation of indiscriminate violence (i.e. irrespective of the applicants identity) and that their return to the country/ region of origin would constitute a real risk of being subject to the serious threat referred to in Article 15c) of the directive.
While the Court acknowledged that the number of civilian casualties in a region can serve as a guidance in the assessment of the existence of a serious threat, it rejected that it should constitute the only determining factor in this assessment. Indeed, adding on to the fact that the reliability of the sources providing this information can be difficult to verify, the establishment of such a threshold will likely 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. Moreover, the Court noted that if Member States were to apply different standards of interpretation or a lower threshold, it would encourage a practice of ‘forum shopping’ among the applicants. Hence the Court rejected the application of the threshold of civilian casualties in order to determine “serious and individual threat” to the applicants.
2nd question :
The Court relied on the opinion of the Advocate General and confirmed that the meaning of Article 15(c) must be interpreted broadly. Based on Article 4(3) of the same directive, an international protection application “must be subject to an individual assessment, in respect of which a whole series of factors must be taken into account”. According to 4(3)a), those factors include more specifically “all relevant facts as they relate to the country of origin at the time of taking a decision on the application”. Those relevant facts may include, inter alia, the intensity of the armed confrontations, the level of organisation of the armed forces involved, and the duration of the conflict 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. Therefore, the Court required a comprehensive appraisal of all the circumstances of the individual case to be applied and, in particular, those which characterise the situation of the applicant’s country of origin.
With respect to the 1st question, the Court ruled that Article 15(c) of the recast Qualification Directive 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.
Regarding the 2nd question, the Court held that Article 15(c) of the recast Qualification Directive 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.
C‑465/07, Elgafaji 
C‑720/17, Bilali 
C‑507/19, Bundesrepublik Deutschland (Refugee status of a stateless person of Palestinian origin) 
C‑285/12, Diakité