# C_2009129EN.01000701.xml

| 6.6.2009 | EN | Official Journal of the European Union | C 129/7 |
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6.6.2009

EN

Official Journal of the European Union

C 129/7

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Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 13 March 2009 — Federal Republic of Germany v D, other parties: The Representative of the Federal Interest at the Bundesverwaltungsgericht, The Federal Commissioner for Asylum Matters at the Bundesamt für Migration und Flüchtlinge

(Case C-101/09)

2009/C 129/11

Language of the case: German

Referring court

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Parties to the main proceedings

Applicant: Federal Republic of Germany

Applicant:

Defendant: D

Defendant:

Other parties: The Representative of the Federal Interest at the Bundesverwaltungsgericht

Other parties:

The Federal Commissioner for Asylum Matters at the Bundesamt für Migration und Flüchtlinge

Questions referred

Questions referred

| 1. | Does it constitute a serious non-political crime or an act contrary to the purposes and principles of the United Nations within the meaning of Article 12(2)(b) and (c) of Council Directive 2004/83/EC (1) of 29 April 2004 if a foreign national was for many years involved as a combatant and an official — including for a time as a member of its governing body — in an organisation (in this case, the PKK) which repeatedly employed terrorist methods in its armed struggle against the state (in this case, Turkey) and is included in the list of persons, groups and entities annexed to the Council Common Position on the application of specific measures to combat terrorism, and the foreign national thereby actively supported its armed struggle in a prominent position? |
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1.

Does it constitute a serious non-political crime or an act contrary to the purposes and principles of the United Nations within the meaning of Article 12(2)(b) and (c) of Council Directive 2004/83/EC (1) of 29 April 2004 if a foreign national was for many years involved as a combatant and an official — including for a time as a member of its governing body — in an organisation (in this case, the PKK) which repeatedly employed terrorist methods in its armed struggle against the state (in this case, Turkey) and is included in the list of persons, groups and entities annexed to the Council Common Position on the application of specific measures to combat terrorism, and the foreign national thereby actively supported its armed struggle in a prominent position?

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| 2. | If Question 1 is to be answered in the affirmative: does exclusion from recognition as a refugee under Article 12(2)(b) and (c) of Directive 2004/83/EC require that the foreign national continue to constitute a danger? |
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2.

If Question 1 is to be answered in the affirmative: does exclusion from recognition as a refugee under Article 12(2)(b) and (c) of Directive 2004/83/EC require that the foreign national continue to constitute a danger?

| 3. | If Question 2 is to be answered in the negative: does exclusion from recognition as a refugee under Article 12(2)(b) and (c) of Directive 2004/83/EC require that a proportionality test be undertaken in relation to the individual case? |
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3.

If Question 2 is to be answered in the negative: does exclusion from recognition as a refugee under Article 12(2)(b) and (c) of Directive 2004/83/EC require that a proportionality test be undertaken in relation to the individual case?

| 4. | If Question 3 is to be answered in the affirmative:






  (a) | Is it to be taken into account in considering proportionality that the foreign national enjoys protection against deportation under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 or under national rules? |
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4.

If Question 3 is to be answered in the affirmative:

(a)

Is it to be taken into account in considering proportionality that the foreign national enjoys protection against deportation under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 or under national rules?

| (b) | Is exclusion disproportionate only in exceptional cases having particular characteristics? |
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(b)

Is exclusion disproportionate only in exceptional cases having particular characteristics?

| 5. | Is it compatible with the directive, for the purposes of Article 3 of Directive 2004/83/EC, if the foreign national continues to be recognised as having a right to asylum under national constitutional law even if one of the exclusion criteria laid down in Article 12(2) of the directive is satisfied and refugee status under Article 14(3) of the directive is revoked? |
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5.

Is it compatible with the directive, for the purposes of Article 3 of Directive 2004/83/EC, if the foreign national continues to be recognised as having a right to asylum under national constitutional law even if one of the exclusion criteria laid down in Article 12(2) of the directive is satisfied and refugee status under Article 14(3) of the directive is revoked?

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(1)  OJ 2004 L 304, p. 12.

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