Opinion of the Advocate General — ECLI:EU:C:2009:551
Date: 2009-09-15
Language of the case: German
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Preliminary rulings – Jurisdiction of the Court – Limits (Arts 68 EC and 234 EC) 2. Visas, asylum, immigration – Asylum policy – Refugee status or subsidiary protection status – Directive 2004/83 – Cessation of refugee status (Council Directive 2004/83, Arts 2(c), 7(1) and 11(1)(e)) 3. Visas, asylum, immigration – Asylum policy – Refugee status or subsidiary protection status – Directive 2004/83 – Cessation of refugee status (Council Directive 2004/83, Arts 2(e), 4 and 11(1)(e)) 4. Visas, asylum, immigration – Asylum policy – Refugee status or subsidiary protection status – Directive 2004/83 – Cessation of refugee status (Council Directive 2004/83, Arts 2(c) and 11(1)(e)) 5. Visas, asylum, immigration – Asylum policy – Refugee status or subsidiary protection status – Directive 2004/83 – Cessation of refugee status (Council Directive 2004/83, Arts 4(4) and 11(1)(e)) 1. Neither the wording of Articles 68 EC and 234 EC nor the aim of the procedure established by Article 234 EC indicates that the framers of the Treaty intended to exclude from the jurisdiction of the Court requests for a preliminary ruling on a directive where the domestic law of a Member State refers to the provisions of that directive in order to determine the rules applicable to a situation purely internal to that State. In such a case it is clearly in the Community interest that, in order to forestall future differences of interpretation, provisions taken from Community law should be interpreted uniformly, irrespective of the circumstances in which they are to apply. (see para. 48) 2. Article 11(1)(e) 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: - refugee status ceases to exist when, having regard to a change of circumstances of a significant and non-temporary nature in the third country concerned, the circumstances which justified the person’s fear of persecution for one of the reasons referred to in Article 2(c) of Directive 2004/83, on the basis of which refugee status was granted, no longer exist and that person has no other reason to fear being ‘persecuted’ within the meaning of Article 2(c) of Directive 2004/83; - for the purposes of assessing a change of circumstances, the competent authorities of the Member State must verify, having regard to the refugee’s individual situation, that the actor or actors of protection referred to in Article 7(1) of Directive 2004/83 have taken reasonable steps to prevent the persecution, that they therefore operate, inter alia, an effective legal system for the detection, prosecution and punishment of acts constituting persecution and that the national concerned will have access to such protection if he ceases to have refugee status; - the actors of protection referred to in Article 7(1)(b) of Directive 2004/83 may comprise international organisations controlling the State or a substantial part of the territory of the State, including by means of the presence of a multinational force in that territory. (see para. 76, operative part 1) 3. In connection with the concept of international protection, 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 governs two distinct systems of protection, that is to say, firstly, refugee status and, secondly, subsidiary protection status, in view of the fact that Article 2(e) of the directive states that a person eligible for subsidiary protection is one who does not qualify as a refugee. Therefore, as there would otherwise be a failure to have regard for the respective domains of the two systems of protection, the cessation of refugee status cannot be made conditional on a finding that a person does not qualify for subsidiary protection status. Within the system of that directive, the possible cessation of refugee status occurs without prejudice to the right of the person concerned to request the granting of subsidiary protection status in the case where all the factors, referred to in Article 4 of the directive, which are necessary to establish that he qualifies for such protection under Article 15 of the Directive are present. (see paras 78-80) 4. When the circumstances which resulted in the granting of refugee status have ceased to exist and the competent authorities of the Member State verify that there are no other circumstances which could justify a fear of persecution on the part of the person concerned either for the same reason as that initially at issue or for one of the other reasons set out in 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, the standard of probability used to assess the risk stemming from those other circumstances is the same as that applied when refugee status was granted. At both of those stages of the examination, the assessment relates to the same question of whether or not the established circumstances constitute such a threat that the person concerned may reasonably fear, in the light of his individual situation, that he will in fact be subjected to acts of persecution. That assessment of the extent of the risk must, in all cases, be carried out with vigilance and care, since what are at issue are issues relating to the integrity of the person and to individual liberties, issues which relate to the fundamental values of the Union. (see paras 89-91, operative part 2) 5. In so far as it provides indications as to the scope of the evidential value to be attached to previous acts or threats of persecution, Article 4(4) 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 may apply when the competent authorities plan to withdraw refugee status under Article 11(1)(e) of that directive and the person concerned, in order to demonstrate that there is still a well-founded fear of persecution, relies on circumstances other than those as a result of which he was recognised as being a refugee. However, that may normally be the case only when the reason for persecution is different from that accepted at the time when refugee status was granted and only when there are earlier acts or threats of persecution which are connected with the reason for persecution examined at that stage. (see para. 100, operative part 3)