Opinion of the Advocate General — ECLI:EU:C:2020:404
Date: 2020-05-28
Language of the case: German
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-238/19 – 1 
Case C-238/19 
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: 
20 March 2019 
Referring court: 
Verwaltungsgericht Hannover (Germany) 
Date of the decision to refer: 
7 March 2019 
Applicant: 
EZ 
Defendant: 
Federal Republic of Germany, represented by the Bundesamt für 
Migration und Flüchtlinge (Federal Office for Migration and 
Refugees)  
      
Subject matter of the main proceedings 
The parties are in dispute before the national court over the question of whether 
the applicant, who has already been granted subsidiary protection, can, in 
addition, claim recognition of refugee status from the defendant.  
Subject matter and legal basis of the reference 
The referring court has submitted to the Court of Justice under Article 267 TFEU 
a request for an interpretation of Directive 2011/95 in a case where a Syrian 
national subject to compulsory military service has left his country of origin 
because of the threat of conscription and is now seeking recognition of refugee 
status in the Federal Republic of Germany.  
EN 
SUMMARY OF A REQUEST FOR A PRELIMINARY RULING – CASE C-238/19 
 
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Questions referred 
1.  Is Article 9(2)(e) of Directive 2011/95/EU to be interpreted as meaning that 
a ‘refusal to perform military service in a conflict’ does not require the person 
concerned to have refused to perform military service in a formalised refusal 
procedure, where the law of the country of origin does not provide for a right to 
refuse to perform military service? 
2. If Question 1 is to be answered in the affirmative: 
By the reference to ‘refusal to perform military service in a conflict’, does Article 
9(2)(e) of Directive 2011/95/EU also protect persons who, after the deferment of 
military service has expired, do not make themselves available to the military 
administration of the State of origin and evade compulsory conscription by 
fleeing? 
3. If Question 2 is to be answered in the affirmative: 
Is Article 9(2)(e) of Directive 2011/95/EU to be interpreted as meaning that, for a 
conscript who does not know what his future field of military operation will be, 
the performance of military service would, directly or indirectly, include ‘crimes 
or acts falling within the grounds for exclusion as set out in Article 12(2)’ solely 
because the armed forces of his State of origin repeatedly and systematically 
commit such crimes or acts using conscripts? 
4. Is Article 9(3) of Directive 2011/95/EU to be interpreted as meaning that, in 
accordance with Article 2(d), there must be a connection between the reasons 
mentioned in Article 10 and the acts of persecution as qualified in Article 9(1) and 
(2) of Directive 2011/95/EU or the absence of protection against such acts, even in 
the event of persecution under Article 9(2)(e) of Directive 2011/95/EU? 
5. In the event that Question 4 is to be answered in the affirmative, is the 
connection, within the meaning of Article 9(3) in conjunction with Article 2(d) of 
Directive 2011/95/EU, between persecution by virtue of prosecution or 
punishment for refusal to perform military service and the reason for persecution 
already established in the case where prosecution or punishment is triggered by 
refusal? 
Provisions of international law cited 
Convention relating to the Status of Refugees of 28 July 1951 (Geneva Refugee 
Convention) 
Geneva Convention of 12 August 1949 relative to the Protection of Civilian 
Persons in Time of War 
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Protocol additional to the Geneva Conventions of 12 August 1949 and relating to 
the Protection of Victims of International Armed Conflicts (Protocol I) 
Protocol additional to the Geneva Conventions of 12 August 1949 and relating to 
the Protection of Victims of Non-International Armed Conflicts (Protocol II) 
Provisions of EU law cited 
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), in particular Article 2(d), Article 
9(1), (2)(e) and (3), Article 10 and Article 12(2) 
Provisions of national law cited 
Asylgesetz (Asylum Law) (AsylG), in particular Paragraph 3(1), (2) and (4), 
Paragraph 3a(1), point 1, (2), point 5, and (3), and Paragraph 3b(1) and (2) 
Völkerstrafgesetzbuch (International Criminal Code) of 26 June 2002 
Brief presentation of the facts of the case and the procedure 
1 The applicant is a Syrian national. He left his homeland by sea on 6 November 
2014 and, on 5 September 2015, travelled by land via a number of countries to the 
Federal Republic of Germany. On 28 January 2016, he filed a formal application 
for asylum with the defendant. 
2 At a hearing held by the defendant, the applicant stated in essence that he had not 
yet completed his military service in the Syrian army and had asked to have his 
military service deferred for fear of having to take part in the civil war. He had 
been granted a deferment until February 2015 to complete his university studies. 
He had completed his studies in April 2014 and left his home country in 
November on account of his impending call-up.  
3 By decision of 11 April 2017, the defendant granted the applicant subsidiary 
protection status. As to the remainder, it turned down the asylum application. The 
applicant brought an action against that decision before the referring court on 1 
May 2017.  
SUMMARY OF A REQUEST FOR A PRELIMINARY RULING – CASE C-238/19 
 
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Main arguments of the parties to the main proceedings 
4 The applicant claims in essence that, irrespective of any individual reasons, he is 
at risk of persecution in Syria not least because of his flight from Syria and his 
application for asylum in Germany. 
5 The defendant takes the view that the applicant has not himself suffered any 
persecution in Syria such as to cause him to leave. Neither does he have any 
reason to fear persecution as a returnee, having fled only to escape the civil war. 
There is, in any event, no connection between the act of persecution and the 
reason for persecution. 
Brief presentation of the grounds for the reference 
The national legal position 
6 The applicant seeks to be granted refugee status under Paragraph 3(1) and (4) in 
conjunction with Paragraph 3a(1) and (2), point 5, of the Asylgesetz (AsylG). 
According to those provisions, a foreign national is to be granted refugee status if 
he finds himself outside his country of origin on account of a well-founded fear of 
persecution for reasons of race, religion, nationality, political conviction or 
membership of a particular social group. In accordance with Paragraph 3a(2), 
point 5, of the AsylG, prosecution or punishment for refusing to perform military 
service in a conflict may count as  persecution if the performance of military 
service would include crimes or acts falling within the scope of the exclusion 
clauses contained in Paragraph 3(2), first sentence, point 1, of the AsylG. In 
accordance with Paragraph 3(2), first sentence, point 1, of the AsylG, those 
exclusion clauses cover crimes against peace, war crimes or crimes against 
humanity. In accordance with Paragraph 3a(3), there must be a connection 
between the reasons for persecution mentioned in Paragraph 3(1), point 1, of the 
AsylG in conjunction with Paragraph 3b of the AsylG and the acts classified as 
persecution in Paragraph 3a(1) of the AsylG. 
7 The case-law of the German administrative courts on the political persecution of 
(Syrian) conscripts by virtue of prosecution or punishment for refusal to perform 
military service is inconsistent. 
The situation in Syria 
8 Syria has been the scene of a domestic armed conflict since 2011. In the view of 
the referring court, it is a matter of fact that, in the Syrian civil war, all parties to 
the conflict have committed and continue to commit repeated, serious and 
systematic violations of international humanitarian law.  
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9 Syria operates a system of two-year compulsory military service for male Syrian 
nationals aged 18 and over. Syrian law does not provide for a right to 
conscientious objection. 
10 The Syrian military administration continues to recruit intensively. At the same 
time, part of that recruitment process is a general expectation that conscripts, on 
becoming eligible for conscription, following the expiry of a period of deferment 
for study purposes for example, will report to the recruitment offices of their own 
accord. After six months, conscripts who do not report to the military 
administration are routinely placed on a list of draft evaders which is made 
available to checkpoints and other government agencies. In times of war, draft 
evaders apprehended in this way are liable under Syrian law to prison sentences of 
up to five years. The form of punishment imposed is arbitrary and ranges from 
statutory prison terms, via high-risk front-line operations with no military training, 
to execution. 
11 The referring court is satisfied that the applicant, who escaped from the Syrian 
authorities shortly before the deferment of his military service expired by leaving 
Syria and seeking protection in the Federal Republic of Germany, is liable on 
account of that conduct to prosecution or punishment in his country of origin, 
Syria, which operates a general obligation of enlistment in military service which 
the applicant does not wish to fulfil and which would probably involve the 
commission of war crimes. 
The questions referred 
The first and second questions referred 
12 The referring court wishes to ascertain first whether the evasion of military service 
by flight is capable of constituting a refusal to perform military service or whether 
a refusal to perform military service that is expressly declared to the competent 
authorities must be required. Questions 1 and 2 are intended to determine whether 
Article 9(2)(e) of Directive 2011/95 is to be understood as meaning that the 
‘refusal’ to perform military service requires more than mere flight from the State 
of origin, even if the law of the country of origin does not provide for the 
possibility of refusing to perform military service. The assumption that conscripts 
must in any event make a declaration of refusal to perform military service to the 
State authorities would mean that they would expose themselves to potential 
punishment with no prospect of having their conscience-based decision taken into 
account. For this reason, the referring court is inclined to regard even a conscript’s 
flight from his State of origin as a refusal to perform military service, provided 
that there is an objective link in time between his flight and the date of his call-up 
or the commencement of his eligibility for conscription, and to answer both 
questions in the affirmative. 
SUMMARY OF A REQUEST FOR A PRELIMINARY RULING – CASE C-238/19 
 
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The third question referred 
13 The exclusion clause contained in Article 12(2)(a) of Directive 2011/95/EU 
concerns ‘war crimes’. That term is based on Article 1(F) of the Geneva 
Convention of 28 July 1951. In particular, a war crime is deemed to have occurred 
where military acts are directed against persons and entities specifically protected 
by the Geneva Convention relative to the Protection of Civilian Persons in Time 
of War of 12 August 1949 and Additional Protocols I and II. That Convention and 
its Additional Protocols were transposed into German law by the 
Völkerstrafgesetzbuch (International Criminal Code) of 26 June 2002. It governs, 
inter alia, which acts fall within the concept of war crimes and which within the 
concept of ‘crimes against humanity’, the latter falling to be treated as war crimes. 
14 The national court refers to the findings of the Court of Justice in the judgment of 
26 February 2015, Shepherd (C-472/13, EU:C:2015:117), in particular paragraphs 
35 to 46, and the corresponding Opinion of Advocate General Sharpston 
(EU:C:2014:2360), in particular point 37. It concludes from that case-law that the 
fugitive does not have to commit war crimes or crimes against humanity himself, 
the relevant factor being the general context in which the military service is 
performed. The fugitive must demonstrate, however, that his military service 
‘would include’ acts or crimes falling within the scope of the exclusion clause. 
The test thus entails a prediction as to how likely it is that the military service in 
question will in future involve the commission of such an act. In accordance with 
the case-law of the Court of Justice, protection may be extended to persons who 
are not directly involved in war crimes only if it seems reasonably plausible that 
the performance of their duties would require them to participate in such acts in a 
sufficiently direct fashion. 
15 The referring court considers the participation of conscripts in future war crimes 
in Syria to be sufficiently plausible. It refers, inter alia, to numerous reports by 
United Nations agencies which have led it to be believe that Syrian government 
troops have for years been extensively involved in systematic war crimes and have 
been using conscripts to commit them. 
16 The referring court raises the question as to whether it is only in those 
circumstances that it seems reasonably plausible that the performance of military 
service by a conscript would include at least indirect participation in a war crime. 
The national courts infer from the judgment in Shepherd that conscripts whose 
military service has been deferred must also give some indication of the military 
unit to which they would belong in their home country. That requirement does not 
seem appropriate to the referring court. First, that criterion is not the only 
determining factor, the Court of Justice having relied in the judgment in Shepherd 
on a bundle of equally important indicia such as the individual situation, the 
personal circumstances of the applicant and the facts associated with the country 
of origin, which must show that the situation obtaining within the context of the 
military service makes it seem plausible that the alleged war crimes will be 
committed. Secondly, the referring court takes the view that the factual premisses 
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relied on by the Court of Justice in Shepherd do not apply in Syria. The Court of 
Justice had thus argued that, in principle, the United States of America punishes 
war crimes and that the armed intervention in Iraq was engaged in on the basis of 
a mandate from the Security Council and under the approval and supervision of 
the international community. The Syrian State does not punish war crimes, 
however, but promotes them. The Syrian army is being deployed without a 
mandate from, or the approval or supervision of, the international community; 
indeed, it is condemned by that community. Thirdly, the fugitive is required to 
provide information which he generally – as in the case in the main proceedings – 
cannot provide, namely which military function he would perform and in which 
unit if he did not evade military service.    
17 In the view of the referring court, this raises the (further) question as to whether, 
in the case of the applicant, the performance of military service ‘would include’ 
acts falling within the scope of the exclusion clause even if it turns out that, 
although his individual situation and his personal circumstances are inconclusive 
from the point of view of the examination of the matter, the conditions obtaining 
in the country of origin, in and of themselves, make it seem reasonably plausible 
to assume that the performance of military service would give rise to a situation 
involving a risk of war crimes being committed. Account being taken of the 
particular circumstances of the Syrian civil war, the referring court is of the 
opinion that the theoretical possibility that the conscript could complete his 
military service without recourse to crime is not, in and of itself, sufficient to 
render implausible his contention that the performance of military service would 
itself include the commission of war crimes or crimes against humanity. 
The fourth question referred 
18 Article 9(3) of Directive 2011/95 requires there to be a connection between an act 
of persecution within the meaning of Article 9(2) of Directive 2011/95 or the 
absence of protection against such acts and the reasons for persecution referred to 
in Article 2(d) in conjunction with Article 10 of Directive 2011/95. The referring 
court raises the question as to whether that condition in respect of the protection of 
refugees also applies to persecution within the meaning of Article 9(2)(e) of 
Directive 2011/95.  
19 The answers provided by the German courts to that question are inconsistent. The 
referring court harbours doubts as to whether Article 9(3) of Directive 2011/95 is 
to be applied in the case of Article 9(2)(e) of Directive 2011/95 because the latter 
provision is the only one of the definitions contained in paragraph 2 which already 
requires the existence of a causal chain, that is to say prosecution or punishment 
‘for [in German, literally, ‘because of’] refusal to perform military service’, 
whereas all the other definitions concern a single situation. What is more, the 
conscientious objector would [in that event] have to demonstrate that he fears 
persecution in his home country ‘because of’ his race, religion, nationality, 
political opinion or membership of a particular social group’, within the meaning 
of Article 2(d) of Directive 2011/95. Anyone raising a conscientious objection to 
SUMMARY OF A REQUEST FOR A PRELIMINARY RULING – CASE C-238/19 
 
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military service will usually argue – as the applicant in these proceedings does – 
that he is thereby giving expression to his stance on the matter (his ‘thought’ 
within the meaning of Article 10(1)(e) of Directive 2011/95). This raises the 
question as to whether, in circumstances such as those at issue, it is even 
conceivable that a connection would not be present, given that the opinion that 
one cannot perform military service in a conflict where this might lead to the 
commission of war crimes must also be regarded as a political opinion. 
The fifth question referred 
20 By the fifth question, the referring court wishes to ascertain whether prosecution 
or punishment for refusal to perform military service within the meaning of 
Article 9(2)(e) of Directive 2011/95 constitutes a case of persecution for holding a 
political opinion within the meaning of Article 10(1)(e) of Directive 2011/95.