# C_2009129EN.01000301.xml

| 6.6.2009 | EN | Official Journal of the European Union | C 129/3 |
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6.6.2009

EN

Official Journal of the European Union

C 129/3

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Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 10 February 2009 — Bundesrepublik Deutschland v B, Other party to the proceedings: Der Vertreter des Bundesinteresses beim Bundesverwaltungsgericht

(Case C-57/09)

2009/C 129/04

Language of the case: German

Referring court

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Parties to the main proceedings

Applicant: Bundesrepublik Deutschland

Applicant:

Defendant: B

Defendant:

Other party to the proceedings: Der Vertreter des Bundesinteresses beim Bundesverwaltungsgericht

Other party to the proceedings

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 of 29 April 2004 if the appellant was a member of an organisation which is included in the list of persons, groups and entities (1) annexed to the Council Common Position on the application of specific measures to combat terrorism and employs terrorist methods, and the appellant has actively supported that organisation’s armed struggle? |
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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 of 29 April 2004 if the appellant was a member of an organisation which is included in the list of persons, groups and entities (1) annexed to the Council Common Position on the application of specific measures to combat terrorism and employs terrorist methods, and the appellant has actively supported that organisation’s armed struggle?

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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 appellant 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 appellant 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 appellant 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 appellant 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 appellant has 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? |
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5.

Is it compatible with the directive, for the purposes of Article 3 of Directive 2004/83/EC, if the appellant has 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?

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(1)  OJ L 304, p. 12.

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