Opinion of the Advocate General — ECLI:EU:C:2012:224
Date: 2012-04-19
Language of the case: German
Subject matter: Asylum policy;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Grand Chamber), 5 September 2012 1. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2004/83 — Qualification as a refugee — Risk of persecution — Concept of act of persecution — Interference with the external manifestation of freedom of religion — Included — Conditions — Genuine risk of being prosecuted or subject to inhuman or degrading treatment or punishment (Charter of Fundamental Rights of the European Union, Art. 10(1); (Council Directive 2004/83, Arts 6 and 9(1)(a)) 2. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2004/83 — Qualification as a refugee — Genuine risk of acts of persecution during observance of religious practices (Council Directive 2004/83, Art. 2(c)) 1. Articles 9(1)(a) of Directive 2004/83 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 must be interpreted as meaning that not all interference with the right to freedom of religion which infringes Article 10(1) of the Charter of Fundamental Rights of the European Union is capable of constituting an ‘act of persecution’ within the meaning of that provision of the directive. It is apparent from the wording of Article 9(1) of that directive that there must be a ‘severe violation’ of freedom of religion having a significant effect on the person concerned in order for it to be possible for the acts in question to be regarded as acts of persecution. Accordingly, acts whose gravity is not equivalent to that of an infringement of the basic human rights from which no derogation can be made by virtue of Article 15(2) of the European Convention on Human Rights cannot be regarded as constituting persecution within the meaning of Article 9(1) of Directive 2004/83 and Article 1A of the Geneva Convention Relating to the Status of Refugees. Acts which may constitute a ‘severe violation’ within the meaning of that provision include serious acts which interfere with the applicant’s freedom not only to practice his faith in private circles but also to live that faith publicly. Therefore, there may be an act of persecution as a result of interference with the external manifestation of that freedom. For the purpose of determining whether interference with the right to freedom of religion which infringes Article 10(1) of the Charter of Fundamental Rights of the European Union may constitute an ‘act of persecution’, the competent authorities must ascertain, in the light of the personal circumstances of the person concerned, whether that person, as a result of exercising that freedom in his country of origin, runs a genuine risk of, inter alia, being prosecuted or subject to inhuman or degrading treatment or punishment by one of the actors referred to in Article 6 of Directive 2004/83. (see paras 59, 61, 63, 72, operative part 1) 2. Article 2(c) of Directive 2004/83 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 must be interpreted as meaning that the applicant’s fear of being persecuted is well founded if, in the light of the applicant’s personal circumstances, the competent authorities consider that it may reasonably be thought that, upon his return to his country of origin, he will engage in religious practices which will expose him to a real risk of persecution. In assessing an application for refugee status on an individual basis, those authorities cannot reasonably expect the applicant to abstain from those religious practices. (see para. 80, operative part 2)