Judgment;Abstract — ECLI:EU:C:2023:542
Date: 2023-07-06
Language of the case: French
Court formation: First Chamber
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary C-8/22 – 1 
Case C-8/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice  
Date lodged:  
5 January 2022 
Referring court:  
Conseil d’État (Belgium) 
Date of the decision to refer:  
2 December 2021 
Applicant: 
XXX 
Respondent:  
Commissaire général aux réfugiés et aux apatrides 
  
I. Subject matter of the main proceedings 
1 The applicant is requesting that a judgment delivered on 26 August 2019 
ʻthe judgment under appealʼ) by the Conseil du contentieux des étrangers (Council 
for asylum and immigration proceedings, ʻCCEʼ) be set aside. 
II. Brief summary of the facts and the procedure in the main proceedings 
2 On 23 February 2007, the applicant was recognised as a refugee by the 
Commissariat général aux réfugiés et apatrides (Office of the Commissioner 
General for Refugees and Stateless Persons, ʻCGRAʼ). 
3 On 20 December 2010, he was sentenced by the Cour d'assises de 
Bruxelles (Brussels Assize Court) to 25 yearsʼ imprisonment.  
4 On 4 May 2016, the respondent withdrew his refugee status pursuant to 
Article 53/3/1 of the loi du 15 décembre 1980 sur l’accès au territoire, le séjour, 
l’établissement et l’éloignement des étrangers (Law of 15 December 1980 on the 
entry to Belgian territory, stay, residence and removal of foreign nationals, ʻthe 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-8/22 
 
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Law of 15 December 1980ʼ). Paragraph 1 of that provision states: ʻThe 
Commissioner General for Refugees and Stateless Persons may withdraw refugee 
status where a foreign national, having been convicted by final judgment of a 
particularly serious offence, represents a danger to the community or when there 
are reasonable grounds for regarding him as a danger to national securityʼ.  
5 The applicant lodged an appeal before the CCE, which dismissed it by the 
judgment under appeal. . 
III. Essential arguments of the parties in the main proceedings 
I. The applicant 
6 The applicant's first ground of appeal alleges inter alia infringement of 
Article 14 of 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 (OJ 2011 L 337, p. 9), of Article 55/3/1 of the 
Law of 15 December 1980 and of the principle of proportionality, enshrined in 
Belgian law and in European Union law. 
7 The applicant maintains that, according to the CCE, the onus is on him to 
establish that, notwithstanding the existence of that conviction, he does not 
constitute, or no longer constitutes, a danger to the community.  
8 The applicant criticises the CCE's reasoning. Neither the existence of past 
convictions nor the fact that the CGRA took a decision implies a reversal of the 
burden of proof. The CCE should have examined the intentions of the Belgian 
legislature and of the EU legislature. It is not the intention of the Belgian 
legislature to consider that a conviction suffices to establish the threat or creates 
any presumption of a present threat; on the contrary, two conditions have to be 
met: a conviction for a particularly serious crime and constituting a danger to the 
community. Conversely, a conviction is not necessary for the person concerned to 
constitute a danger to national security. 
9 Since Article 55/3/1 (1) of the Law of 15 December 1980 and Article 14(4) 
of Directive 2011/95 are not worded in exactly the same way, the national 
provision must be interpreted in accordance with EU law. Article 14(4) of 
Directive 2011/95 provides: ʻMember States may revoke, end or refuse to renew 
the status granted to a refugee by a governmental, administrative, judicial or 
quasi-judicial body, when (a) there are reasonable grounds for regarding him or 
her as a danger to the security of the Member State in which he or she is present, 
(b) he or she, having been convicted by a final judgment of a particularly serious 
crime, constitutes a danger to the community of that Member Stateʼ. The 
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provision of EU law therefore places more specific emphasis on the two 
cumulative conditions (conviction and danger).  
10 Consequently, according to the applicant, before the CCE, it was for the 
CGRA to establish that he constituted a danger to the community, which it could 
not do by simply referring to the conviction. Also, the CCE had to state reasons 
for its position regarding the threat constituted by the person concerned, taking 
into account all the evidence, without the existence of a past conviction sufficing 
or establishing any presumption which the convicted person must rebut in order to 
avoid withdrawal of status. However, the CCE does not seem to consider that the 
CGRA has to demonstrate that the two cumulative conditions are satisfied, but 
only that the person concerned may try to establish that, in spite of the conviction, 
he or she does not constitute a danger.  
11 In any event, the CCE should have verified the facts relied on by the 
CGRA and examined the current arguments put forward by the applicant. 
However, the CGRA relies on criminal offences dating back to 2006, which is not 
enough for an analysis of the present situation.  
12 The EU case-law relating to Article 7(4) of Directive 2008/115/EC of the 
European Parliament and of the Council of 16 December 2008 on common 
standards and procedures in Member States for returning illegally staying third-
country nationals (OJ 2008 L 348, p. 98) has identified basic principles where the 
administration considers the foreign national to constitute a ʻriskʼ, with regard to 
the principle of proportionality and the need for an individual examination of the 
case at issue. The applicant cites the judgment of 11 June 2015, Zh. and O. 
(C-554/13, EU:C:2015:377). Moreover, the Court's case-law establishes a link 
between Directive 2008/115 and Directive 2013/33/EU of the European 
Parliament and of the Council of 26 June 2013 laying down standards for the 
reception of applicants for international protection (OJ 2013 L 180, p. 96). That 
guidance is relevant in the present case as regards ʻrefugee lawʼ. 
13 Consequently, according to the applicant, when the EU legislature refers, 
in Article 14(4) of Directive 2011/95, to the fact that the foreign national 
concerned has been convicted and constitutes a danger, it does not allow the 
danger to be presumed owing to a preceding conviction; on the contrary, it lays 
down two separate cumulative conditions which it is for the authority to establish 
as a reason for its decision; the conviction for a particularly serious crime and the 
existence of a danger to the community. Article 14(4)(b) of Directive 2011/95 
would have been worded differently if the danger were regarded as established 
owing to the mere fact of the conviction: it would not have referred to the danger 
to the community, but only to the conviction and, possibly, instead of ʻhavingʼ, 
the words ʻbecauseʼ or ʻasʼ would have been used.  
14 It is therefore necessary to ask the Court whether Article 14(4) of Directive 
2011/95, read alone and in conjunction with the principle of proportionality, 
precludes a national practice of considering that a danger to the community is 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-8/22 
 
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presumed on the basis of a conviction for a particularly serious crime, and that it is 
for the convicted foreign national to establish that he does not constitute a danger 
to the community. 
15 Furthermore, according to the applicant, the CGRA also states as a reason 
for its position the fact that the tribunal de l’application des peines (Sentence 
Enforcement Court, ʻTAPʼ) considers that the risk posed by the applicant, 
although low, is ʻnot excludedʼ, and that the TAP ʻtakes into account the existence 
of potential dangerʼ and adopts ʻa series of measures to prevent that danger from 
materialisingʼ following the applicant's conditional release. Since the threat 
attributed to the applicant is to be at least minimally specific and sufficiently 
genuine, those considerations are not enough to consider that the CCE was right to 
hold that danger been established and that, at the very least, would set an 
inordinately low threshold, contrary to the principle of proportionality. The 
question of whether a danger is established to the requisite legal standard when 
the court considers that that danger is ʻnot excludedʼ or ʻpotentialʼ is not a 
question of assessment in fact but a point of law. 
16 In the judgment of 11 June 2015, Zh. and O. (C-554/13, EU:C:2015:377, 
paragraph 60), the Court held that ʻthe concept of ‟risk to public policy”, as set 
out in Article 7(4) of [Directive 2008/115], presupposes, in any event, the 
existence, in addition to the perturbation of the social order which any 
infringement of the law involves, of a genuine, present and sufficiently serious 
threat affecting one of the fundamental interests of societyʼ. In the present case, 
the reasoning of the CCEʼs judgment does not reach that threshold.  
17 Moreover, in the same judgment, the Court held in essence that the threat 
attributed to a foreign national who has been convicted must be analysed on the 
basis of his individual situation and take into account all the relevant evidence, 
such as the time which has elapsed and the context. However, the CCE states in 
the judgment under appeal that it does not see how the various considerations 
relating to the efforts made to reintegrate the applicant into society show that he 
does not constitute a danger to the community. Also, the CCE does not respond to 
the applicant's arguments concerning the time which has elapsed since his 
conviction or to the arguments that the offences for which he was convicted date 
back to a period when he was a minor with neither ties nor income, which is no 
longer the case today, that he now no longer suffers from addiction, that he 
behaved well in prison and that supervision of his release is going well. It follows 
that the CCE did not rule on the danger posed by the applicant in the light of all 
the current evidence.  
18 It is therefore necessary to ask the Court whether Article 14(4) of Directive 
2011/95, read alone and in conjunction with the principle of proportionality, 
requires the authority to establish that the threat attributed to the foreign national 
is genuine, present and sufficiently serious, and relates to one of the fundamental 
interests of society, taking into account all the evidence in the case, and in 
particular the efforts made by the foreign national concerned to reintegrate and 
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evidence of his reintegration since his conviction, and the fact that the 
criminogenic context in which the foreign national committed offences in the past 
has changed. 
II. The Respondent  
19 According to the respondent, it is apparent from the travaux préparatoires 
that, in the French version of the draft, the words ʻfaisant l’objet d’une 
condamnation définitive pour une infraction particulièrement graveʼ [‘the subject 
of a conviction by a final judgment for a particularly serious crime’] were 
replaced by ʻayant été condamné définitivement pour une infraction 
particulièrement graveʼ [‘having been convicted a final judgment of a particularly 
serious crime’], in order to emphasise the link between a final conviction for a 
particularly serious crime and the ensuing danger to society (see Doc. parl., Ch. 
repr., sess. ord. 2015/2015, no 1197/01, p.18). It is therefore clear that the Belgian 
legislature intended to link the danger posed to the community and the fact of 
having been convicted for a particularly serious crime and that, for the EU 
legislature, in order for a refugee to be regarded as a threat to the society of the 
Member State, he must be convicted by a final judgment. That does not imply that 
the danger may be established on the basis of the conviction alone.  
20 It is apparent from the terms of the judgment under appeal that the CCE 
took into account the fact that the applicant was convicted for a particularly 
serious crime and examined the issue of whether, therefore, he currently 
constituted a danger to society. The CCE pointed out that, in spite of the existence 
of that conviction, the person concerned had to be able to establish, if necessary, 
that he is not, or is no longer, a danger to society. The CCE then found that the 
applicant was convicted of a particularly serious crime and that the assessment of 
the danger which a refugee constitutes for the community must be made according 
to the particular seriousness of the offence committed, which is wholly consistent 
with the law.  
21 It is also apparent from the terms of the judgment under appeal that the 
CCE examined the arguments put forward by the applicant in order to assess 
whether, in spite of that conviction for a particularly serious offence, he still 
constituted a danger to the community. The reasons why the applicant's pleas were 
rejected is apparent from the whole decision and the CCE clearly stated the 
reasons why it considered that the danger which the applicant might represent was 
still present. That assessment lies within the sole jurisdiction of the trial court. 
22 Concerning the principle of proportionality, in the judgment of 
9 November 2010, B and D (C-57/09 and C-101/09, EU:C:2010:661), the Court 
ruled on the need to conduct a proportionality test in the case of exclusion from 
being a refugee pursuant to Article 12(2)(b) or (c) of Directive 2011/95. It held 
that such exclusion is linked to the seriousness of the acts committed, which must 
be of such a degree that the person concerned cannot legitimately claim the 
protection attaching to refugee status. Since the competent authority has already, 
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in its assessment of the seriousness of the acts committed by the person concerned 
and of that person's individual responsibility, taken into account all the 
circumstances surrounding those acts and the situation of that person, it cannot be 
required, if it reaches the conclusion that Article 12(2) applies, to undertake an 
assessment of proportionality, implying as that does a fresh assessment of the 
level of seriousness of the acts committed (paragraph 109). Article 14(4) of 
Directive 2011/95 and Article 55/3/1 (1) of the Law of 15 December 1980 also 
make withdrawal of status conditional on the existence of a certain level of 
seriousness of the acts committed and, since the court has already taken into 
consideration all the circumstances of the case in order to assess the acts justifying 
withdrawal, it cannot be required to conduct another examination of 
proportionality which would imply a fresh assessment of the level of seriousness 
of the acts committed. It is therefore not necessary to put a question to the Court 
on this point. 
IV. Findings of the referring court  
23 It is apparent from the judgment under appeal that, according to 
Article 55/3/1(1) of the Law of 15 December 1980, the danger which the foreign 
national constitutes for the community stems from his conviction for a particularly 
serious crime. The CCE considers, however, that the applicant may demonstrate 
that, notwithstanding his conviction, he does not constitute, or no longer 
constitutes, a danger to the community.  
24 The CCE does not consider, therefore, that it is for the CGRA to establish 
that the applicant, who has been convicted by a final judgment, constitutes a 
genuine, present and sufficiently serious danger to the community. It takes the 
view, in essence, that that danger is established, in principle, by the fact that the 
applicant has been convicted of a particularly serious offence, but that the 
applicant may adduce evidence that he does not represent, or no longer represents, 
such a danger.  
25 In his first plea, the applicant contests that analysis by the CCE. He 
maintains, in essence, that it is for the respondent to establish that he constitutes a 
genuine, present and sufficiently serious danger to the community and not for the 
applicant to establish that he does not represent, or no longer represents, such a 
danger. He considers that his conviction for a particularly serious offence cannot 
suffice, on its own, to prove the existence of that danger, but that it is necessary to 
demonstrate his persistence and therefore his present character. In particular, the 
applicant maintains that it is not sufficient if the danger is potential or cannot be 
excluded; it must be proved. He considers that proportionality test must be 
conducted in order to determine whether the danger which he constitutes justify 
the withdrawal of his refugee status. 
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V. Succinct presentation of the reasoning in the reference for a preliminary 
ruling  
26 Article 55/3/1 of the Law of 15 December 1980 transposed Article 14(4) of 
Directive 2011/95. The scope to be given to Article 55/3/1 of the Law of 
15 December 1980 must be determined according to the scope of the provision of 
EU law which it transposes.  
27 The Conseil d’État (Council of State) therefore considers it necessary to 
refer questions to the Court concerning the interpretation to be given to 
Article 14(4) of Directive 2011/95 in order to determine whether the applicant's 
criticisms are founded.  
VI. Questions referred for a preliminary ruling  
1. Must Article 14[(4)(b)] of 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, be interpreted as 
providing that danger to the community is established by the mere fact that the 
beneficiary of refugee status has been convicted by a final judgment of a 
particularly serious crime or must it be interpreted as providing that a conviction 
by a final judgment for a particularly serious crime is not, on its own, sufficient to 
establish the existence of a danger to the community?  
2. If a conviction by final judgment for a particularly serious crime is not, on 
its own, sufficient to establish the existence of a danger to the community, must 
Article 14[(4) (b)] of Directive 2011/95/EU be interpreted as requiring the 
Member State to establish that, since his or her conviction, the applicant continues 
to constitute a danger to the community? Must the Member State establish that the 
danger is genuine and present or is the existence of a potential threat sufficient? 
Must Article 14[(4)(b)], taken alone or in conjunction with the principle of 
proportionality, be interpreted as allowing revocation of refugee status only if that 
revocation is proportionate and the danger represented by the beneficiary of that 
status sufficiently serious to justify that revocation?  
3. If the Member State does not have to establish that, since his or her 
conviction, the applicant continues to constitute a danger to the community and 
that the threat is genuine, present and sufficiently serious to justify the revocation 
of refugee status, must Article 14[(4)(b)] of Directive 2011/95/EU be interpreted 
as meaning that danger to the community is established, in principle, by the fact 
that the beneficiary of refugee status has been convicted by a final judgment of a 
particularly serious crime [,] but that he or she may establish that he or she does 
not constitute, or no longer constitutes, such a danger?