EN Official Journal of the European Union C 13/4

Judgment of the Court (Grand Chamber) of 9 November 2010 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Bundesrepublik Deutschland v B (C-57/09), D (C-101/09)

(Joined Cases C-57/09 and C-101/09) (1)

(Directive 2004/83/EC - Minimum standards for the grant of refugee status or of subsidiary protection - Article 12 - Exclusion from refugee status - Article 12(2)(b) and (c) - Notion of ‘serious non-political crime’ - Notion of ‘acts contrary to the purposes and principles of the United Nations’ - Membership of an organisation involved in terrorist acts - Subsequent inclusion of that organisation on the list of persons, groups and entities which forms the Annex to Common Position 2001/931/CFSP - Individual responsibility for part of the acts committed by that organisation - Conditions - Right of asylum by virtue of national constitutional law - Compatibility with Directive 2004/83/EC)

2011/C 13/07

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Bundesrepublik Deutschland

Defendant: B (C-57/09), D (C-101/09)

Re:

Reference for a preliminary ruling — Bundesverwaltungsgericht Leipzig — Interpretation of Articles 3 and 12(2)(b) and (c) of Council Directive 2004/83/EC of 29 April 2004 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 (OJ 2004 L 304, p. 12) — National of a non-member country who in his country of origin actively supported the armed struggle of an organisation included in the list of terrorist organisations in the annex to Council Common Position 2002/462/CFSP of 17 June 2002 (OJ 2002 L 160, p. 32) and has been tortured and twice sentenced to life imprisonment in that country — Application of the provisions of Directive 2004/83/EC excluding the grant of refugee status to a person who has carried on terrorist activity in his country of origin — Power of the Member States to grant refugee status on the basis of their constitutional provisions in the face of a ground of exclusion from that status under that directive

Operative part of the judgment

1. Article 12(2)(b) and (c) of Council Directive 2004/83/EC of 29 April 2004 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 fact that a person has been a member of an organisation which, because of its involvement in terrorist acts, is on the list forming the Annex to Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and that that person has actively supported the armed struggle waged by that organisation does not automatically constitute a serious reason for considering that that person has committed ‘a serious non-political crime’ or ‘acts contrary to the purposes and principles of the United Nations’; — the finding, in such a context, that there are serious reasons for considering that a person has committed such a crime or has been guilty of such acts is conditional on an assessment on a case-by-case basis of the specific facts, with a view to determining whether the acts committed by the organisation concerned meet the conditions laid down in those provisions and whether individual responsibility for carrying out those acts can be attributed to the person concerned, regard being had to the standard of proof required under Article 12(2) of the directive.

2. Exclusion from refugee status pursuant to Article 12(2)(b) or (c) of Directive 2004/83 is not conditional on the person concerned representing a present danger to the host Member State.

3. The exclusion of a person from refugee status pursuant to Article 12(2)(b) or (c) of Directive 2004/83 is not conditional on an assessment of proportionality in relation to the particular case.

4. Article 3 of Directive 2004/83 must be interpreted as meaning that Member States may grant a right of asylum under their national law to a person who is excluded from refugee status pursuant to Article 12(2) of the directive, provided that that other kind of protection does not entail a risk of confusion with refugee status within the meaning of the directive.

(1) OJ C 129, 6.6.2009.