Opinion of the Advocate General — ECLI:EU:C:2023:420
Date: 2023-05-17
Language of the case: Dutch
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary  C-402/22 – 1 
Case C-402/22 
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:  
20 June 2022 
Referring court:  
Raad van State (Netherlands) 
Date of the decision to refer:  
15 June 2022 
Applicant:  
Staatssecretaris van Justitie en Veiligheid 
Defendant:  
M.A. 
  
Subject matter of the main proceedings 
Appeal by the Staatssecretaris van Justitie en Veiligheid (State Secretary for 
Justice and Security, Netherlands) against the judgment of the Rechtbank Den 
Haag (District Court, The Hague) in the context of a dispute concerning the 
rejection of an application for international protection on the ground that the 
foreign national concerned had been convicted by a final judgment of, inter alia, 
several counts of sexual assault and that, for that reason, the State Secretary 
considers that he constitutes a danger to the community. 
Subject matter and legal basis of the request 
Following requests for a preliminary ruling from the Verwaltungsgerichtshof 
(Supreme Administrative Court, Austria) in Case C-663/21 and from the Raad van 
State (Council of State, Belgium) in Case C-8/22, the referring court seeks an 
interpretation of the concept of particularly serious crime in Article 14(4)(b) of 
Directive 2011/95/EU. The referring court also reiterates the questions referred by 
the Council of State, Belgium in Case C-8/22. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-402/22 
 
2  
Questions referred for a preliminary ruling 
Question 1(a) 
When is a crime so ‘particularly serious’ within the meaning of Article 14(4)(b) of 
Directive 2011/95/EU that a Member State may refuse to grant refugee status to a 
person in need of international protection? 
Question 1(b) 
Are the criteria for a ‘serious crime’ in Article 17(1)(b) of Directive 2011/95/EU, 
as set out in paragraph 56 of the judgment of the Court of Justice of 13 September 
2018, Ahmed, ECLI:EU:C:2018:713, relevant for the purposes of assessing 
whether a ‘particularly serious crime’ has been committed? If so, are there further 
criteria which render a crime ‘particularly’ serious? 
Question 2 
Must Article 14(4)(b) of Directive 2011/95/EU 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? 
Question 3 
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? 
Question 4 
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? 
STAATSSECRETARIS VAN JUSTITIE EN VEILIGHEID 
 
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Provisions of European Union law relied on 
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: recitals 2, 4, 23 and 24; Articles 2, 12, 14 and 17 
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: Articles 5, 6, 8 and 9 
Case-law of the Court relied on 
Judgment of 2 March 2010, Salahadin Abdulla and Others, C-175/08, 
EU:C:2010:105  
Judgment of 13 September 2018, Ahmed, C-369/17, EU:C:2018:713  
Judgment of 11 April 2019, Tarola, C-483/17, EU:C:2019:309  
Judgment of 14 May 2019, M (Revocation of refugee status), C-391/16, 
EU:C:2019:403  
Judgment of 12 December 2019, G.S. (Threat to public policy), C-381/18, 
EU:C:2019:1072  
Provisions of international law cited 
Geneva Convention of 1951 relating to the Status of Refugees, signed in Geneva 
on 28 July 1951, as amended by the New York Protocol (‘the Refugee 
Convention’): Article 33 
Provisions of national law relied on 
Vreemdelingenwet 2000 (2000 Law on foreign nationals; ‘Vw 2000’): Article 29 
Vreemdelingenbesluit 2000 (2000 Decree on foreign nationals; ‘Vb 2000’): 
Article 3.105c 
Vreemdelingencirculaire 2000 (2000 Implementation guidelines for the law on 
foreign nationals; ‘Vc 2000’): paragraph B1/4.4, paragraph C2/7.10.1 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-402/22 
 
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Succinct presentation of the facts and procedure in the main proceedings 
1 The foreign national is from Libya. On 5 July 2018, he lodged a fourth application 
for international protection. In her decision of 12 June 2020, the State Secretary 
for Justice and Security (the competent determining authority in Netherlands 
immigration law) rejected the application for international protection on the 
ground that, in 2018, the foreign national was sentenced, by final judgment of the 
Gerechtshof Arnhem-Leeuwarden (Court of Appeal, Arnhem-Leeuwarden), to 
24 months’ imprisonment for having committed, on the same evening, three 
counts of indecent assault, one count of attempted indecent assault and the theft of 
a mobile phone from one of his victims. According to the State Secretary, those 
acts together constitute a ‘particularly serious crime’ and, for that reason, the 
foreign national constitutes a danger to the community. The State Secretary 
therefore based her refusal to grant the foreign national refugee status on 
Article 14(4)(b) of Directive 2011/95, read in conjunction with paragraph 5 
thereof. 
2 By judgment of 13 July 2020, the District Court of The Hague upheld the foreign 
national’s appeal against the State Secretary’s decision. The District Court held 
that the State Secretary had not provided an adequate statement of reasons as to 
why the acts committed by the foreign national, the actual severity of those acts 
and the nature and degree of violence were of such seriousness and magnitude that 
this justified the refusal of refugee status. The District Court referred to the 
judgment of the Court of Justice of 13 September 2018, Ahmed, C-369/17, 
EU:C:2018:713 (‘Ahmed’). The District Court also held that, as regards the 
question as to whether the foreign national posed a danger to the community, the 
State Secretary had to assess whether the foreign national represents a genuine, 
present and sufficiently serious threat affecting one of the fundamental interests of 
society. According to the District Court, the State Secretary also failed to state 
adequate reasons for the decision on that ground. 
3 The State Secretary appealed against that judgment before the referring court. 
The essential arguments of the parties in the main proceedings 
4 On appeal, the State Secretary argued that the District Court had been wrong to 
find that she had failed to provide an adequate statement of reasons as to why the 
foreign national had been convicted by a final judgment of a particularly serious 
crime. In the Court of Appeal judgment, the foreign national was sentenced to a 
total of 24 months’ imprisonment for, inter alia, multiple counts of sexual assault. 
This fulfils the criteria for a ‘particularly serious crime’ in the Vc 2000, paragraph 
C2/7.10.1 (which lays down the policy of the State Secretary in this area), namely 
a final judgment sentencing the foreign national to one or more prison sentences 
or measures involving deprivation of liberty of a total of at least ten months for 
one or more crimes.  
STAATSSECRETARIS VAN JUSTITIE EN VEILIGHEID 
 
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5 The State Secretary explained that the level of sentence set down in the Vc 2000 is 
regarded as a lower limit and serves to safeguard legal certainty. If that level of 
sentence is met, the ‘particularly serious’ nature of the crime is assessed taking 
into account all the circumstances of the case. Accordingly, the State Secretary 
interprets the concept of ‘particularly serious crime’ within the meaning of 
Article 14(4)(b) of Directive 2011/95. Furthermore, in the Vc 2000, the State 
Secretary interpreted the concept of danger to the community in such a way that a 
foreign national who has been convicted of a sexual offence (such as sexual 
assault) may, in any event, be assumed to constitute a danger to the community. 
The State Secretary therefore acted in accordance with a published policy rule. 
6 According to the State Secretary, the particular seriousness of the offences 
committed was apparent from the fact that the foreign national had tried to grab 
the genitals of his victims and to touch their bodies. In so doing, the foreign 
national seriously undermined the physical integrity of his victims. According to 
the State Secretary, the attention given to this case in the media demonstrates that 
sex offences such as these cause feelings of fear and insecurity and are disruptive 
to society. It is partly for that reason that the criminal court imposed on the foreign 
national a sentence of 24 months’ imprisonment, which is considered severe by 
Netherlands standards. Ultimately, the State Secretary felt justified in refusing the 
foreign national refugee status. 
7 As regards the concept of danger to the community in Article 14(4)(b) of 
Directive 2011/95, the State Secretary took the view that the danger to the 
community was, in principle, established by the fact that the foreign national had 
been convicted by a final judgment of a ‘particularly serious crime’ and that it was 
for the foreign national to demonstrate that he did not constitute a danger to the 
community. Moreover, referring to the judgment of the Court of Justice of 
12 December 2019, G.S. (Threat to public policy), C-381/18, EU:C:2019:1072, 
paragraph 54, the State Secretary argued that the District Court had applied the 
wrong standard of review by finding that, for the purposes of interpreting the 
concept of danger to the community, she had to assess whether the foreign 
national represents a genuine, present and sufficiently serious threat affecting one 
of the fundamental interests of society.  
8 The foreign national claimed that the State Secretary was wrong to refuse to grant 
him refugee status. According to the foreign national, the State Secretary was 
wrong to apply that power – which constitutes a limitation on the obligation to 
grant refugee status to a refugee – in a non-restrictive manner. Moreover, the State 
Secretary was wrong to take the level of sentence as the starting point for 
examining and assessing whether the crime was particularly serious. According to 
the foreign national, the principle of proportionality of EU law requires that each 
case be judged on its merits, which is not the case when using the length of the 
sentence as a starting point. In his view, it would be disproportionate to refuse him 
refugee status when he has plausibly demonstrated that he has a well-founded fear 
of persecution in his country of origin. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-402/22 
 
6  
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 The Raad van State (Council of State, Netherlands), while drawing inspiration 
from the questions referred in the requests for a preliminary ruling in Cases 
C-663/21 (Supreme Administrative Court, Austria) and C-8/22 (Council of State, 
Belgium), seeks further information.  
10 The Supreme Administrative Court, Austria, held that, in the case in the main 
proceedings, a particularly serious crime had been committed and that, therefore, 
the conditions for the application of Article 14(4)(b) of Directive 2011/95 were 
satisfied. In particular, it sought to ascertain how the balancing of interests must 
be carried out between the right of a foreign national to reside in the European 
Union and not to be expelled, on the one hand, and the protection of public order, 
on the other. The answer to its questions could be relevant to the present case, but 
the Council of State, Netherlands also seeks an interpretation of the concept of 
particularly serious crime. 
11 The Council of State, Belgium has referred questions concerning the interpretation 
of the concept of danger to the community and the connection between that 
concept and the concept of particularly serious crime, but did not seek an 
interpretation of the concept of particularly serious crime itself. The answers to 
the questions raised by the Council of State, Belgium are also relevant to the 
referring court. It therefore reiterates the latter’s questions (Questions 2 to 4 in the 
present request). 
12 The Council of State, Netherlands notes that the wording of Article 14(4)(b) of 
Directive 2011/95 does not define the concept of particularly serious crime. That 
provision is worded as an optional power of the Member States, as indicated by 
the verb ‘may’. The referring court infers from this that the Member States have a 
margin of discretion when examining whether a foreign national, having been 
convicted by a final judgment of a ‘particularly serious crime’, constitutes a 
danger to the community. The extent of the discretion enjoyed by the Member 
States in implementing Article 14(4)(b) of Directive 2011/95 is not apparent from 
that provision. The Council of State, Netherlands therefore raises the question of 
the legal limits within which the Member States may define the concept of 
particularly serious crime and on the basis of which circumstances the Member 
States must determine whether a foreign national has been convicted by a final 
judgment of a particularly serious crime. 
13 It appears, moreover, from the wording of Article 14(4)(b) of Directive 2011/95 
that there must be at least one final conviction for a ‘particularly serious crime’, 
the term ‘particularly serious crime’ being drafted in the singular in all the 
language versions. Multiple convictions for minor offences do not fall within that 
classification. 1 
 
1 See the report ‘Judicial Analysis: Ending international protection’ by the European Union 
Agency for Asylum (EUAA), 2021. 
STAATSSECRETARIS VAN JUSTITIE EN VEILIGHEID 
 
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14 According to the judgment of the Court of Justice of 2 March 2010, Salahadin 
Abdulla and Others, C-175/08, EU:C:2010:105, paragraphs 51 to 53, the 
provisions of Directive 2011/95 for determining who qualifies for refugee status 
were adopted to assist the competent authorities of the Member States in the 
application of the Geneva Convention relating to the Status of Refugees. It is also 
apparent from the travaux préparatoires relating to Directive 2004/38/EC, which 
preceded Directive 2011/95/EU, that the EU legislature intended to allow Member 
States to exclude from refugee status foreign nationals who constitute a danger to 
the community. This was in accordance with Article 33(2) of the Refugee 
Convention. Article 14(4)(b) of Directive 2011/95 must therefore be interpreted in 
the light of the Refugee Convention. However, the concept of particularly serious 
crime is not defined in that convention either. The UNHCR has, however, stated 
as a minimum threshold that it must in any event be ‘a capital crime or a very 
grave punishable act’. 2 According to the UNHCR, that assessment must be 
carried out taking into account all the circumstances of the case. 
15 As regards subsidiary protection status, it is clear from the wording of 
Article 17(1)(b) of Directive 2011/95 that the EU legislature intended to exclude 
foreign nationals from that status where there are serious reasons for considering 
that they have committed a ‘serious crime’. In Ahmed, the Court held that the 
concept of serious crime is a concept of EU law that must be given an autonomous 
and uniform interpretation (paragraphs 33 to 36). It also held, in paragraph 56, that 
a number of criteria are relevant to the assessment by the Member States of the 
seriousness of the crime referred to in Article 17(1)(b) of the Directive, such as, 
inter alia, the nature of the act at issue, the consequences of that act, the form of 
procedure used to prosecute the crime, the nature of the penalty provided and 
whether most jurisdictions also classify the act at issue as a serious crime. The 
question is whether those aspects are also relevant to the interpretation of the 
concept of particularly serious crime in Article 14(4)(b) of the Directive, relating 
to refugee status. The referring court considers that the judgment in Ahmed does 
not provide sufficient guidance in that regard.  
 
2 UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 
Convention, paragraphs 155 to 161.