Report from the Commission to the European Parliament and the Council on the Application of 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
Date: 2010-06-16
Institutions: European Commission
Subjects: EU migration policy, aid to refugees, application of EU law, foreign national, report, right of asylum, stateless person, third country

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EUROPEAN COMMISSION 

Brussels, 16.6.2010 
COM(2010)314 final 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

ON THE APPLICATION OF 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  

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REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

ON  THE  APPLICATION  OF  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 

1. 

INTRODUCTION 

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  beneficiaries  of  international 
protection  and  the  content  of  the  protection  granted  (the  "Qualification  Directive"  or 
"Directive")1  is  one  of  the  "building  blocks"  of  the  first  phase  of  the  Common  European 
Asylum System, called for  by  the  European Council in its 1999 Tampere Conclusions. It is 
applicable to all Member States except Denmark2.  

This report meets the Commission's obligation under Article 37 of the Directive. It gives an 
overview  of  the  transposition  and  implementation  of  the  Directive  by  Member  States  and 
identifies  possible  problematic  issues.  It  is  based  on  a  study  conducted  on  behalf  of  the 
Commission3 and on information from other studies4. It must be read in conjunction with the 
Impact Assessment conducted for the purposes of the recast of the Qualification Directive5. 

For those Member States6 which had not adopted the necessary transposing legislation at the 
time  of  preparation  of  the  report,  relevant  information  was  gathered  on  the  basis  of  draft 
legislation available at that time and fragmentary information obtained since the adoption of 
the transposing legislation7.  

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OJ L 304, 30.9.2004, p. 12 
In this report "Member States" means the Member States bound by the Directive. 
September  2008  -  study  contracted  to  the  Academic  Network  for  Legal  Studies  on  Immigration  and 
Asylum in Europe "Odysseus".  
Further studies include: UNHCR, "Asylum in the European Union, A study on the implementation of 
the  Qualification  Directive",  November  2007  (the  "UNHCR  study");  ELENA/ECRE,  "The  impact  of 
the  EU  Qualification  Directive  on  International  protection",  October  2008;  ECRE  "Complementary 
Protection in Europe", July 2009, France Terre d'Asile, "Asile La protection subsidiaire en Europe: Un 
mosaïque  de  droits",  Les  cahiers  du  social  no  18,  Septembre  2008;  Dutch  Refugee  Council/ECRE, 
‘Networking  on  the  Transposition  of  the  Qualification  Directive’,  December  2008,  ;  Nijmegen 
University,  "The  Qualification  Directive:  Central  themes,  Problem  issues,  and  Implementation  in 
selected MS", Karin Zwaan (ed), 2007 
Proposal  for  a  Directive  on  minimum  standards  for  the  qualification  and  status  of  third  country 
nationals  or  stateless  persons  as  beneficiaries  of  international  protection  and  the  content  of  the 
protection granted (recast) adopted on 21 October 2009, COM(2009)551, accompanied by the Impact 
Assessment, 
at 
The 
http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=198704  
FI, EL, ES, HU, IT, LV, NL, PL, PT, SI, SE 
The Odysseus report addresses all Member States bound by the directive except for MT. 

SEC(2009) 

documents 

available 

1374. 

are 

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2. 

HISTORICAL AND POLITICAL CONTEXT 

The Qualification Directive was designed to define common criteria for the identification of 
persons  in  need  of  international  protection  and  to  ensure  that  at  least  a  minimum  level  of 
benefits is available for these persons in all Member States. The objective to be pursued for 
the creation of the CEAS is the establishment of a common asylum procedure and a uniform 
status valid throughout the Union.  

The Hague Programme invited the Commission to conclude the evaluation of the first phase 
instruments and to submit the second phase instruments with a view to their adoption by the 
end of 2010. In the Policy Plan on Asylum8 of 17 June 2008, the Commission proposed the 
completion of the second phase of the CEAS through raising the standards of protection and 
ensuring  their  consistent  application  across the  EU.  The  European  Pact  on  Immigration  and 
Asylum  of  16  October  2008  provided  further  political  endorsement  for  this  objective,  by 
inviting the Commission to present proposals for establishing, in 2010 if possible and in 2012 
at  the  latest,  a  single  asylum  procedure  comprising  common  guarantees  and  for  adopting  a 
uniform status for refugees and the beneficiaries of subsidiary protection.  

On  21  October  2009,  the  Commission  presented  a  proposal  for  the  amendment  of  the 
Qualification Directive, together with a Proposal amending Council Directive 2005/85/EC on 
minimum  standards  on  procedures  in  Member  States  for  granting  and  withdrawing  refugee 
status  (the  "Asylum  Procedures  Directive")9,  with  the  aim  to  ensure  a  higher  degree  of 
harmonisation  and  better  substantive  and  procedural  standards  of  protection,  towards  the 
establishment of a common asylum procedure and a uniform status.  

3. 

MONITORING AND STATE OF TRANSPOSITION 

Member States had to transpose the Directive by 10 October 2006. The Commission assisted 
the Member States in the process by holding regular meetings with national experts.  

Following  expiry  of  the  deadline  for  transposition,  infringement  procedures  were  opened 
against  all  Member  States  which  failed  to  communicate  or  to  fully  communicate  their 
transposition  measures.  Subsequently,  in  accordance  with  Article  226  of  the  Treaty,  the 
Commission addressed 19 letters of formal notice and 13 reasoned opinions. The decision to 
bring  the  cases  before  the  Court  of  Justice  was  taken  against  9  Member  States.  Five  cases 
were  withdrawn10  and  judgments  were  given  for  411.  At  present,  the  Directive  has  been 
transposed by all Member States12.  

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Policy Plan on Asylum ‘An integrated approach to protection across the EU’ COM(2008) 360 
OJ L 326, 13.12.2005, p.13  
Cases C-2008/220, C-2008/190, C-2008/19, C-2008/269, C-2008/543 
Case  C-293/08,  judgment  of  5.02.2009,  Commission  v  Finland;  Case  C-256/08,  judgment  of 
30.04.2009, Commission v United Kingdom; C-322/08, judgment of 14.05.2009, Commission v Sweden; 
C-272/08, judgment of 9.07.2009, Commission v Spain 
SE was the last Member State to fully transpose the Directive by a law which entered into force on 01 
January 2010 

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4. 

GENERAL PROVISIONS 

4.1. 

Definitions 

The provisions of 2(c) and (e) are binding for Member States in so far as Articles 13 and 18 
impose  the  obligation  to  grant  status  to  "refugees"  and  "persons  eligible  for  subsidiary 
protection" who qualify in accordance with the Directive. However, domestic law in several 
Member  States  does  not  require  the  grant  of  status  in  obligatory  terms,  either  as  regards 
refugee status (EE, EL, LV) or as regards subsidiary protection (EE, EL, LV, LT, RO). The 
transposing  legislation  in  FI  defines  international  protection  as  including  not  only  refugee 
status  and  subsidiary  protection  but  also  a  residence  permit  granted  on  the  basis  of 
humanitarian protection.  

5. 

SPECIFIC PROVISIONS 

5.1. 

Assessment of application for international protection 

5.1.1.  Assessment of facts and circumstances (Article 4) 

Pursuant  to  Article  4(1),  first  clause,  Member  States  have  the  possibility  to  consider  it  the 
duty  of  the  applicant  for  international  protection  to  submit  as  soon  as  possible  all  elements 
needed to substantiate the application. This provision was transposed by all Members States 
except for BE, CZ, CY, FI, HU, LT and RO.  

The  obligation  to  submit  elements  "as  soon  as  possible"  has  divergent  meanings  in  the 
Members  States  which  elaborated  on  this  term.  A  definite  period  of  time  is  set  in  some 
Member States (ES, FR, PT). BG requests that the submission be made "immediately" after 
illegal entry or "within a reasonable period of time" after legal entry. When these time-limits 
are not complied with, the application can be declared manifestly unfounded (BG), be subject 
to a special "inadmissibility" procedure (ES) or be rejected if no justification is given (PT). 
Furthermore,  the  credibility  of  the  applicant  may  be  affected  (AT,  IE,  SE)  or  the  elements 
submitted after the first interview need not be addressed by the authorities (DE, NL, SK).  

Member States applying Article 4(1), first clause, must also apply Article 4(5), according to 
which  the  applicant's  statements  which  are  not  supported  by  evidence  shall  not  need 
confirmation  if  several  conditions  are  met.  This  rule  was  not  transposed  in  three  Member 
States (EE, ES, PL), whereas two Member States (AT, FR) rely on general principles which 
appear too broad. As regards the 'general credibility' of the applicant, domestic law in some 
Member  States  (EL,  UK)  is  more  restrictive  because  it  raises  the  standard  of  the  level  of 
credibility required by Article 4(5). 

Article  4(1),  second  clause,  requires  Member  States  to  assess  relevant  elements  "in 
cooperation with" the applicant. Transposing legislation of different Member States13 requires 
the  authorities  to  inform  the  applicant  about  the  assessment,  to  conduct  an  interview,  to 
indicate  to  the  applicant  the  points  requiring  clarification,  to  offer  the  applicant  the 
opportunity  to  comment  on  a  draft  decision  and/or the duty of authorities to assess  relevant 
facts ex officio. Some Member States (AT, DE, SK, SI) require that only 'certain' (instead of 
'relevant')  elements  be  assessed  ex  officio,  whereas  in  RO  this  is  only  a  faculty  for  national 

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AT, BE, EE, FI, DE, HU, LU, LV, PL, PT, SK, SI 

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authorities. Two Member States (BG and LT) did not transpose this provision at all whereas 
others (e.g. CY, CZ, FR, RO) transposed it only as regards some of the elements mentioned in 
Article 4(2) and (3).  

The relevant elements to be assessed are enumerated at Article 4(2). Only one Member State 
did not transpose this provision (BE), one addresses the issue in a too general way (BG) and 
one only introduces a general obligation of cooperation without specifying its scope (ES).  

Pursuant to Article 4(3), the assessment of an application is to be carried out on an individual 
basis and includes taking into consideration a list of facts, documents and circumstances set 
out  in  the  provision.  Some  Member  States  (AT,  NL,  PL,  SE)  rely  on  relevant  general 
principles  of  domestic  law.  The  transposing  legislation  of  a  number  of  Member  States  (e.g. 
BE, FI, DE, HU, LT, SI) contains a different list. In the legislation of some Member States 
certain elements of this provision are omitted or incorrectly transposed: 4(3)(c) regarding the 
individual  position  and  personal  circumstances  of  the  applicant  (e.g.  LV,  SI),  4(3)(d) 
regarding the purpose of the applicant's activities since leaving the country of origin (e.g. EE, 
FI,  LT,  SI)  and  4(3)(e)  regarding  the  possibility  for  the  applicant  to  avail  himself  of  the 
protection  of  an  another  country  (e.g.  FI,  SI).  Domestic  law  in  several  Member  States  is 
incomplete  and  ambiguous  (BE,  BG,  CZ,  EE,  ES,  FR,  LT,  SI),  whereas  in  other  Member 
States  it  introduces  additional  requirements  such  as  to  request  comments  of  the  national 
intelligence service (SK) or to assess the position in the country of return (UK).  

Article  4(4)  obliges  Member  States  to  consider  previous  persecution  or  serious  harm  as  a 
serious  indication  of  future  persecution  or  serious  harm,  unless  there  are  good  reasons  to 
consider  that  such  persecution  or  serious  harm  will  not  be  repeated.  A  number  of  Member 
States  did  not  transpose  this  provision  (AT,  BE,  BG,  HU,  PL,  ES,  SE)  or  transposed  it 
incorrectly (CY, CZ, FR, LT). 

5.1.2. 

International protection needs arising sur place (Article 5) 

Article  5(1)  and  (2)  contains  mandatory  provisions,  according  to  which  events  which  have 
taken place and activities which have been engaged in by the applicant since he/she left the 
country of origin can form the basis for recognising a need for international protection. SK did 
not  transpose  both  paragraphs,  whereas  EE  and  LT  did  not  transpose  the  second  one.  LT 
excludes beneficiaries of subsidiary protection from the scope of Article 5(1) whereas CZ and 
PT limit the application of 5(2) solely to activities constituting the continuation of convictions 
or orientations held in the country of origin. 

Article  5(3)  allows  Member  States  to  determine  that  an  applicant  who  files  a  subsequent 
application shall normally not be granted refugee status if the risk of persecution is based on 
circumstances which he/she created by his own decision since leaving the country of origin. 
This optional provision has been transposed by several Member States14, some of which (BG, 
PT,  SI)  apply  this  rule  also  to  first  applications,  whereas  two  Member  States  (EL,  SI)  have 
rendered it mandatory. 

5.1.3.  Actors of persecution or serious harm (Article 6) 

Article  6  obliges  Member  States  to  consider  as  actors  of  persecution  or  serious  harm,  in 
addition to States, parties or organisations controlling at least a substantial part of a State, as 

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AT, BG, CY, DE, EL, HU, LU, PL, PT, RO, SI 

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well as non-State actors, where the actors of protection defined in Article 7 are either unable 
or  unwilling  to  provide  protection.  This  definition  has  been  transposed  restrictively  in  the 
legislation of certain Member States: in BG, the recognition of non-State actors as actors of 
persecution  pre-supposes  that  they  dispose  of  an  organisation  as  well  as  the  existence  of  a 
State  which  is  unable  or  unwilling  to  counteract  them;  the  CZ  legislation  refers  only  to  the 
'inability'  and  not  to  the  'unwillingness'  of  the  State  to  provide  protection  and  covers  only 
actors  of  persecution  and  not  of  serious  harm,  and  the  SK  legislation  restricts  the  notion  of 
"parties"  by  adding  the  qualification  "political"  and  does  not  include  international 
organisations in the definition.  

Non-State actors accepted as actors of persecution in the practice of different Member States 
are reported to include guerrillas and paramilitaries, terrorists, local communities and tribes, 
criminals, family members, members of political parties or movements.  

5.1.4.  Actors of protection (Article 7) 

Article 7(1) allows Member States to consider that protection can be provided not only by the 
State but also by parties and organisations, including international organisations, controlling 
the  State  or  a  substantial  part  of  its  territory.  Paragraph  2  sets  out  the  requirements  for 
accepting that protection is provided, namely that the State or non-State actors take reasonable 
steps  to  prevent  the  persecution  or  serious  harm  and  that  the  applicant  has  access  to  such 
protection. Paragraph 3 requires Member States to take into account in this context guidance 
provided in relevant Council acts.  

Paragraph 1 was transposed by all but one Member States (RO). CZ transposed it only with 
regard  to  refugee  status  whereas  in  EE  legislation  there  is  a  certain  confusion  between  the 
terms "actors of protection" and "actors of persecution". Paragraph 2 was not transposed by 3 
Member States (CZ, EE, RO) whereas LT did not transpose the requirement that the applicant 
should  have  access  to  the  protection.  Based  on  the  use  of  the  terms  "inter  alia"  before  the 
reference to the requirement of an effective legal system capable of detection, prosecution and 
punishment  of  acts  constituting  persecution  or  serious  harm,  this  requirement  has  not  been 
introduced  in  the  legislation  of  BE,  CY,  LV  and  SE.  Paragraph  3  was  not  transposed  in  13 
Member States15. 

Practices regarding the implementation of Article 7 vary widely, which gives way to different 
rates  of  recognition  of  persons  with  the  same  background.  RO  does  not  recognise  actors  of 
protection which do not have the attributes of a state. FI and FR consider that no other parties 
and organisations, beyond international organisations, can offer protection. In several Member 
States16  legislation  and/or  practice  insist  on  assessing  the  accessibility,  durability  and 
effectiveness of the protection provided. FR legislation does not mention the requirements to 
be fulfilled for accepting the existence of protection. BE, CY, LU, LV, PL, and SE are ready 
to  consider  clans  or  tribes  as  capable  of  providing  sufficient  protection  under  certain 
conditions,  whereas  in  BE,  HU  and  the  UK,  NGOs  have  been  considered  as  actors  of 
protection with regard to women at risk of female genital mutilation and honour killings, to 
the  extent  that  they  diminish  such  risks.  However,  in  practice,  protection  provided  by  these 
actors proves to be ineffective or of short duration.  

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AT, BG, EE, FI, FR, LT, NL, PL, PT, RO, SK, SI, SE  
CZ, FI, FR, HU, LU, MT, NL, PL, RO 

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5.1.5. 

Internal protection (Article 8) 

Article  8(1)  is  an  optional  provision,  allowing  Member  States  to  reject  applications  for 
international protection if the applicant has no well-founded fear of persecution or of serious 
harm in a part of the country of origin and he/she can reasonably be expected to stay there. 
Paragraph  2  requires  Member  States  applying  paragraph  1  to  have  regard  to  the  general 
circumstances in that part of the country and to the personal circumstances of the applicant, 
whereas  paragraph  3  allows  them  to  apply  the  concept  of  internal  protection  despite  the 
existence of technical obstacles to return. 

Paragraph  1  has  been  transposed  by  all  Member  States  with  the  exception  of  IT  and  ES; 
paragraph 2 has not been transposed by IT, ES, BG, EE, LT, RO and SE. BG, CZ, EE, LT and 
PT have not transposed the requirement that the applicant can 'reasonably' be expected to stay 
in  the  relevant  part  of  the  country  whereas  others  have  provided  specific  guidance  on  its 
implementation:  RO  requires  that  the  existence  of  internal  flight  is  recognised  by  UNHCR 
and SE that the applicant has an actual possibility to live a life without unnecessary suffering 
or hardship. The requirement to consider the "general circumstances" is not transposed in BG 
and  CZ  whereas  the  requirement  to  consider  individual  circumstances  is  not  transposed  in 
BG, CZ, SI. FR legislation, on the other hand, provides two additional requirements: that the 
applicant should have access to protection and that the authorities should have regard to the 
actor  of  persecution,  which  prevents  the  use  of  the  internal  protection  alternative  in  cases 
where the author of persecution is the State or a national institution.  

Paragraph  3  has  been  transposed  by  only  8  Member  States17.  Technical  obstacles  are 
generally defined as: lack of valid travel documents, impossibility to travel to the country of 
origin and lack of cooperation of authorities in the country of origin and physical inability of 
the  applicant  illness  or  pregnancy.  Applicants  falling  within  the  scope  of  this  paragraph  are 
often not given any legal status or only a tolerated status with limited social rights.  

Available information shows considerable divergences in the implementation of Article 8 and 
in particular in the criteria to be used for the assessment of the general circumstances in the 
country  of  origin  and  the  accessibility  and  nature  of  the  protection  available.  Thus,  some 
Member  States  (FR,  SE)  generally  do  not  apply  the  concept  in  the  cases  of  Chechen 
applicants,  whereas  in  others  (e.g.  DE)  most  parts  of  Russian  Federation  are  accepted  as 
possible internal protection alternatives. Several Member States18 apply the concept where the 
State is the actor of persecution, whereas others, such as FR, do not. 

5.2. 

Qualification for being a refugee  

5.2.1.  Acts of persecution (Article 9) 

Article 9(1) defines acts of persecution within the meaning of Directive, whereas Article 9(2) 
lists examples of such acts. FR did not transpose  literally Article 9. EE transposed only the 
first  subparagraph  of  Article  9(1)  whereas  CZ  used  a  different  definition.  The  second 
paragraph  was  transposed  literally  by  most  Member  States;  in  1  Member  State  (SI),  the  list 
was transposed as an exhaustive one. 

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AT, BE, BG, DE, IE, NL, PL, RO, SK, SI, UK 

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Article 9(3) requires a causal link between the reasons for persecution listed in Article 10(1) 
and the acts of persecution. This provision was not transposed in several Member States (e.g. 
BG, CZ, FR, EL, ES, LU, NL, PL, SK), some of which rely on relevant practice. This lack of 
transposition can be understood as a more favourable standard within the meaning of Article 
3.  It  appears  that,  in  some  Member  States,  courts  have  ruled  that  this  requirement  is  also 
fulfilled  where  there  is  a  connection  between  the  acts  of  persecution  and  the  absence  of 
protection against such acts19.  

5.2.2.  Reasons for persecution (Article 10) 

Article 10(1) offers guidance for the interpretation of the reasons of persecution provided in 
the Geneva Convention relating to the status of refugees20, by setting a non-exhaustive list of 
elements to be taken into account when assessing these reasons. Article 10(2) specifies that it 
is immaterial whether the applicant possesses the characteristic which attracts the persecution 
if such a characteristic is nevertheless attributed to the applicant by the actor of persecution. 
Article  10  was  transposed  by  all  but  2  Member  States  (CZ,  EE),  whereas  1  (SI)  did  not 
transpose Article 10(2).  

Problems were reported with regard to the implementation of Article 10(1)(d) concerning the 
criteria for assessing whether a person is member of a particular social group. This ground for 
protection  is  defined  by  reference  to  two  criteria:  that  the  members  of  this  group  share  an 
innate  characteristic  or  one  that  is  so  fundamental  to  identity  or  conscience  that  cannot 
reasonably  be  changed;  and  that  they  are  perceived  by  society  as  a  distinct  group.  These 
criteria  are  applied  as  cumulative  requirements  by  some  MS21,  but  as  alternative  ones  by 
others22. A few Member States (BE, HU, SI, UK) did not transpose the last clause of Article 
10(1)(d)  regarding  the  relevance  of  gender-related  aspects. In  a  number  of  Member  States23 
this provision is applied broadly, allowing for a definition of a particular social group based 
solely on gender-related aspects, whereas DE provides this explicitly in its legislation. 

5.3. 

Qualification for subsidiary protection  

Article  15,  read  in  conjunction  with  Article  2(e),  defines  the  criteria  of  eligibility  for 
subsidiary protection. Divergences have been noted both in the transposition of Article 15 and 
in its interpretation across Member States and within national jurisdictions.  

Some Member States (BE, CY, HU and SE) have omitted the qualification "in the country of 
origin" in the transposition of Article 15(b); AT legislation defines the grounds for subsidiary 
protection  provided  for  in  Article  15(a)  and  (b)  by  referring  to  Articles  2  and  3  of  the 
European Convention on Human Rights and to Protocols No 6 and 13 to this Convention; the 
UK  legislation  provides  for  "unlawful  killing"  as  an  additional  ground  for  subsidiary 
protection. 

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AT, BE, BG, DE, EE, HU, LT, NL, SI, SE 
Geneva  Convention  relating  to  the  Status  of  Refugees  of  28  July  1951,  as  supplemented  by  the  New 
York Protocol of 31 January 1967 
AT, BE, BG, CZ, DE, ES, FI, FR, PL, PT, SI SK, UK 
EE, EL, ES, HU, IE, LV, LU, NL, RO, SE 
BE, BG, CZ, FI, FR, HU, IE, LU, ES, SE 

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Regarding  the  transposition  of  15(c),  8  Member  States24  have  omitted  the  qualification 
'individual' when transposing the requirement of a "serious and individual threat", whereas FR 
added  the  requirement  that  the  threat  should  also  be  "direct".  The  DE  legislation  omits 
completely  the  notion  of  indiscriminate  violence.  Moreover,  in  some  MS  (e.g.  FR,  DE  and 
SE),  the  requirement  of  an  individual  threat,  read  in  conjunction  with  the  notion  of 
'indiscriminate  violence'  and  recital  26,  has  been  interpreted  as  requiring  that  the  applicant 
demonstrates that he/she is at a greater risk of harm than the rest of the population, or sections 
of it, in his or her country of origin.  

The  requirement  of  the  existence  of  a  "serious  and  individual  threat"  in  Article  15(c)  was 
interpreted by the Court of Justice in its judgment of 17 February 2009, C-465/07. The Court 
clarified  the  conditions  under  which  such  a  threat  can  be  exceptionally  considered  as 
established  in  the  case  of  an  applicant  who  is  not  specifically  targeted  by  reason  of  factors 
particular to his/her personal circumstances and provided guidance on the use of the degree of 
indiscriminate  violence  characterising  the  armed  conflict  as  a  criterion  for  assessing  the 
existence of a serious and individual threat25.  

5.4. 

Revocation  of,  ending  of  or  refusal  to  renew  refugee  status  and  subsidiary 
protection status (Articles 11, 12, 14, 16, 17 and 19) 

The  provisions  of  Articles  11  and  12,  read  in  conjunction  with  Articles  14(1)  and  (3), 
regarding  cessation  of  and  exclusion  from  refugee  status,  and  the  provisions  of  Articles  16 
and 17(1) and (2), read in conjunction with Article 19(1) and (3), regarding cessation of and 
exclusion from subsidiary protection, are phrased in mandatory terms. However, legislation in 
a number of Member States merely allows for termination of status on the grounds referred to 
in these provisions instead of requiring it26. The optional ground for exclusion from subsidiary 
protection in Article 17(3) has been transposed by 13 Member States27.  

On the other hand, certain Member States have introduced additional grounds or overly wide 
grounds  for  cessation28  and  for  exclusion29.  In  some  Member  States,  cessation  of  refugee 
status is not possible if protection is offered by non-State actors or within only in a part of the 
country of origin30. In other Member States, cessation of refugee status (DE, HU, SK) or of 

24 
25 

26 
27 
28 
29 

30 

AT, BE, CZ, DE, EL, ES, HU, LT 
The Court was asked to give a preliminary ruling on whether the existence of a serious and individual 
threat to the life or person of the applicant for subsidiary protection is subject to the condition that that 
applicant  adduce  evidence  that  he  is  specifically  targeted  by  reason  of  factors  particular  to  his 
circumstances and, if not, to indicate the criterion on the basis of which the existence of such a threat 
can  be  considered  to  be  established.  The  Court  found  that  the  existence  of  a  serious  and  individual 
threat to the life or person of an applicant for subsidiary protection is not subject to the condition that 
that  applicant  adduce  evidence  that  he  is  specifically  targeted  by  reason  of  factors  particular  to  his 
personal  circumstances.  It  further  indicated  that  the  existence  of  such  a  threat  can  exceptionally  be 
considered  to  be  established  where  the  degree  of  indiscriminate  violence  characterising  the  armed 
conflict taking place reaches such a high level that substantial grounds are shown for believing that a 
civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on 
account of his presence on the territory of that country or region, face a real risk of being subject to that 
threat. 
BE, IE, UK in the case of cessation and BE and PL in the case of exclusion from refugee status  
BG, CY, CZ, EE, IE, LU, LV, PL, SK, SI, ES, SE, UK 
With regard to Article 11: BG, CZ, EE, ES, LT, PT; with regard to Article 16: BG, DE, LT, PT, SI 
Article 12: DE, IT, PT, SK, SI, FI, LT, RO, UK; Article 14(3): CZ, PL; Article 17: EE, FR, LT, PT, SK, 
SI, UK 
AT, BE, CY, CZ, FR, EL, IE, LV, NL, PL, RO, SK, SI, ES 

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subsidiary  protection  (HU)  is  not  possible  if  there  are  compelling  grounds  resulting  from 
previous persecution or serious harm. 

If the refugee has been granted permanent residence, the termination of status is restricted or 
prevented in some Member States, despite the fulfilment of the conditions for cessation31 or 
exclusion32.  Several  Member  States  do  not  issue  an  alternative  status  following  termination 
because of cessation33 or exclusion34. In other Member States, an exceptional leave to remain 
may be granted in certain circumstances such as ill-health or danger of refoulement in case of 
cessation35 or exclusion36. 

Article 14(4) and (5) allows Member States, under certain conditions, to revoke, end or refuse 
to  renew  the  status  granted  to  a  refugee  and  not  to  grant  status  to  a  refugee,  where  such  a 
decision  has  not  yet  been  taken,  in  cases  where  a  person  is  a  danger  to  their  security  or 
community. Article 14(6) requires Member States making use of one or both of these options 
to grant the persons concerned at least certain basic rights set out in the Geneva Convention. 
However, several Member States implementing one of or both these optional provisions have 
failed  to  transpose  Article  14(6)37,  although  some  are  reported  to  afford  the  Geneva 
Convention rights as a result of the "direct effect of the Geneva Convention" (BE) or for other 
non-specified reasons (AT) which does not constitute sufficient transposition of the Directive 
provision.  Only  where  it  is  possible  for  the  beneficiaries  to  effectively  claim  such  rights 
before the courts or administrative bodies in a given Member State, this can be said to be in 
line with the Directive.  

Regarding  procedural  rules,  the  burden  of  proof  lies  with  national  authorities,  which  must 
"demonstrate  on  an  individual  basis"  that  a  person  has  ceased  to  be  or  has  never  been  a 
refugee or a person eligible for subsidiary protection, as required by Articles 14(2) and 19(4). 
A  number  of  Member  States38  failed  to  implement  these  provisions,  or  implemented  them 
only partially. 

The  Court  of  Justice  interpreted  Article  11(1)(e)(f)  and  (2)  on  the  'ceased  circumstances' 
cessation  clauses  in  its  judgment  of  02  March  201039.  There  are  currently  two  pending 

31 
32 
33 

34 

35 
36 
37 
38 
39 

Regarding refugee status: AT, DE, NL, PL; regarding subsidiary protection: NL, PL  
Regarding refugee status: DE, NL, PL; regarding subsidiary protection: DE, NL, PL  
Regarding  refugee  status:  BG,  CZ,  EE,  EL,  IT,  LV,  LT,  LU,  NL,  PL,  RO;  regarding  subsidiary 
protection: BG, CZ, EL, LV, LT, LU, NL, PL, RO.  
Regarding refugee status: BG, EL, LV, LT, LU, NL, PL, RO; regarding subsidiary protection: BG, EL, 
LV, LT, LU, NL, PL, RO 
BE, CY, FI, DE, HU, IE, PT, SI, ES, SE 
AT, BE, CY, CZ, FI, DE, HU, IE, PT, SK, SI, ES, SE, UK  
AT, BE, BG, IT, LV, LT, NL, UK – IE relies on general principle of internal law 
AT, BE, BG, CY, CZ, EE, FR, LV, IT, PT, ES, UK 
Joined Cases C-175/08. C-176/08. C-178/08 et C-179/08, Salahadin Abdulla, Hasan, Adem and Rashi, 
Jama: The Court mainly ruled that cessation of refugee status intervenes when, following a change of 
circumstances  of  a  significant  and  non-temporary  nature  in  the  third  country  concerned,  the 
circumstances which had justified the person’s fear of persecution no longer exist and he has no other 
reason  to  fear  being  persecuted.  The  competent  authorities  must  verify  that  the  actors  of  protection 
referred to in Article 7(1) have taken reasonable steps to prevent the persecution. They must therefore 
operate,  inter  alia,  an  effective  legal  system  for  the  detection,  prosecution  and  punishment  of  acts 
constituting persecution and ensure that the national concerned will have access to such protection if he 
ceases to have refugee status. The change in circumstances will be of a ‘significant and non-temporary’ 
nature when the factors which formed the basis of the refugee’s fear of persecution may be regarded as 
having been permanently eradicated. That implies that there are no well-founded fears of being exposed 
to acts of persecution amounting to ‘severe violations of basic human rights’. 

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references for preliminary rulings regarding the interpretation of the provisions on cessation 
and exclusion. More specifically, these references regard Article 12 (1)(a) on the exclusion of 
persons  falling  within  the  scope  of  Article  1  D  of  the  Geneva  Convention40,  and  the 
provisions  of  Articles  12(2)  and  14(3),  on  the  conditions  that  need  to  be  fulfilled  for  the 
application of exclusion and the relevant consequences41.  

5.5. 

Content of international protection 

5.5.1.  General rules (Article 20) 

The first paragraph of this Article provides that the Directive's Chapter VII, on the content of 
international  protection  shall  be  without  prejudice  to  the  rights  laid  down  in  the  Geneva 
Convention. No cases have been identified of non-transposition of this paragraph as such, nor 
of legal (or practical) problems with regard to the transposition.  

Paragraph 2 sets out the principle of equality between refugees and beneficiaries of subsidiary 
protection status with regard to the application of the said Chapter, unless otherwise indicated 
in the Directive itself. In LT and LV equal treatment is transposed formally, but in practice, 
equal  treatment  applies  only  during  the  social  integration  period,  while  beneficiaries  of 
subsidiary protection do not have access to certain rights following the expiry of this period, 
as  many  general  legislative  acts  grant  such  access  only  to  permanent  residents  (which 
beneficiaries of subsidiary protection are not). 

5.5.2.  Vulnerable persons and minors - Article 20(3)(4)(5) 

Article 20(3) sets out the obligation to take the specific situation of certain vulnerable groups 
(set  out  in  a  non-exhaustive  list)  into  account  when  implementing  Chapter  VII.  A  few 
Member States have not transposed Article 20(3) (BE, CZ, EE, LU, NL, RO, UK). The norms 
in  some  Member  States,  which  either  have  formally  transposed  or  apply  pre-existing 
legislation (e.g. AT, DE, FI, LT, NL, SE), do not specifically mention all the categories listed 
in the provision. Moreover, in LT, vulnerable groups are mentioned only for the purpose of 
the social integration period, while the general social legislation does not always contain such 
provisions concerning refugees or beneficiaries of subsidiary protection. In SK, the situation 
of  vulnerable  groups  is  regulated  in  some  fields,  such  as  health  care,  solely  by  way  of 
practice. In PT, rules on vulnerability stipulate only the obligation to take into consideration 
the situation of vulnerable persons in an adequate manner, except concerning unaccompanied 
minors.  Inversely,  ES,  LT  and  NL  have  broadened  the  scope  of  the  provision  by  including, 
respectively,  victims  of  human  trafficking,  families  with  three  and  more  minor  children  or 
with one or two children under 18 and persons with psychological problems. 

Article  20(4)  imposes  an  obligation  for  Member  States  to  recognise  the  special  needs  of 
vulnerable  persons  for  the  purposes  of  applying  paragraph  3  only  after  an  individual 
evaluation of their situation. This provision has not been transposed in 12 Member States42.  

Article  20(5),  which  sets  out  the  principle  that  the  best  interest  of  the  child  should  be  a 
primary consideration for Member States when applying Chapter VII, has not been transposed 
by BE, ES, IE, NL and UK.  

40 
41 
42 

Case C-31/09, Bolbol Nawras; v. opinion of Advocate General Sharpston of 04 March 2010  
Cases C-57/09, Cemalettin Polat and C-101/09, Ayhan Ciftci 
BE, BG, CZ, EE, ES, IE, LT, LU, LV, NL, RO, UK 

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5.5.3.  Reduction of benefits – Article 20(6)(7) 

These two paragraphs allow Member States the discretion to reduce the benefits to be granted 
to refugees and beneficiaries of subsidiary protection, respectively, where the protection status 
has  been  obtained  on  the  basis  of  activities  engaged  in  for  the  sole  or  main  purpose  of 
obtaining protection. These provisions have been implemented only in BG, CY and MT.  

5.5.4.  Protection from refoulement  

Article  21(1)  stating  that  Member  States  shall  respect  the  principle  of  non-refoulement  in 
accordance with their international obligations has been transposed by all Member States. The 
optional  provision  in  Article  21(2),  reflecting  the  exceptions  to  the  principle  of  non-
refoulement  provided  for  in  the  Geneva  Convention,  has  been  transposed  in  all  but  a  few 
Member  States  (CZ,  FI,  FR,  HU,  IE,  SK,  SI)  whereas  BE  has  only  transposed  the  optional 
exception under indent (a).  

The optional provision in Article 21(3), which allows Member States to revoke, end or refuse 
to  renew  or  to  grant  a  residence  permit  of  or  to  a  refugee  to  whom  the  exceptions  to  the 
principle  of  non-refoulement  enumerated  in  Article  21(2)  apply,  has  been  transposed  by  a 
small number of Member States (EE, ES, FI, LV, LT, UK). 

5.5.5. 

Information  

Article  22  requires  Member  States  to  provide  beneficiaries  of  either  protection  status  with 
access to information on the rights and obligations relating to the respective status as soon as 
possible after the status has been granted and in a language likely to be understood by them. It 
has not been transposed in AT, BE, FR, LT and RO. Also, the relevant national norms do not 
always specify that such access to information should be provided "as soon as possible" after 
the protection status has been granted (BG), that the information is supposed to be given in a 
language likely to be understood by the recipients of international protection (EE) or what the 
information provided should include (ES, FI).  

5.5.6.  Maintaining family unity  

Article 23 lays down the rules on maintaining family unity for beneficiaries of international 
protection, i.e. on granting their family members who are already present in the territory of a 
given  Member  State  certain  rights  and  benefits.  The  personal  scope  of  application  of  these 
rules is laid down in the provisions of Articles 2(h) and 23(5). 

The  persons  who  should  be  considered  as  family  members  of  a  beneficiary  of  international 
protection  for  the  purposes  of  maintaining  family  unity  are  defined  in  Article  2(h).  This 
provision  imposes  two  general  conditions:  that  the  family  already  existed  in  the  country  of 
origin and that the family members are present in the Member State concerned. The first of 
these  conditions  has  been  transposed  by  a  majority  of  Member  States43  whereas  the  second 
one only by BE, ES, LT, LU, NL. 

For the purpose of granting the benefits referred to in Articles 24 to 34 of the Directive, some 
Member States do not consider unmarried partners in a stable relationship as members of the 
family (e.g. CY, HU, IE, LV, MT, PL, RO), whereas others do (e.g. BG, CZ, ES, FI, LT, LU, 

43 

AT, BE, BG, EE, ES, DE, LU, LV, LT, NL, PT, RO, SI, SK, SE, UK 

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NL,  PT,  SE,  UK).  Such  divergences  are  allowed  by  the  Directive,  to  the  extent  that  the 
treatment  of  unmarried  couples  is  determined  by  reference  to  the  legislation  or  practice  of 
Member  States  and  provided  that  the  implementing  measures  comply  with  fundamental 
rights, in particular the principle of non-discrimination explicitly referred to in recitals 10 and 
11 and enshrined in Article 21 of the Charter of Fundamental Rights of the European Union, 
including non discrimination on grounds of sexual orientation.  

Article  23(5)  allows  Member  States  to  adopt  a  broader  definition  of  family  members, 
covering also other close relatives who lived together as a family unit at the time of leaving 
the  country  of  origin  and  who  were  wholly  or  mainly  dependent  on  the  beneficiary  of 
international  protection  at  that  time.  This  provision  has  been  formally  transposed  (BE,  BG, 
CY, CZ, EL, FI, IE, PT) or by way of pre-existing norms (AT and SE). 

For the purposes of maintaining family unity, some Member States include further categories, 
such as adult unmarried children, under several conditions, including dependence because of 
their physical or mental health (e.g. BG, EE, IE, SE) or absence of financial capacities (EL). 
Some  include  parents  and/or  grandparents  who  are  financially  dependent  (e.g.  CY,  EE,  EL, 
HU, IE, SE), siblings who are dependent and/or suffering from a mental or physical disability 
(e.g. HU, IE), other dependent member of the family (IE, ES), or parents of unaccompanied 
minors (e.g. CY, HU). 

Reportedly, only one Member State makes use of the possibility provided by Article 23(2) to 
apply  specific  conditions  for  granting  benefits  to  family  members  of  beneficiaries  of 
subsidiary protection (PL).  

5.5.7.  Residence permits – Article 24 

According  to  Article  24,  refugees  and  beneficiaries  of  subsidiary  protection  are  issued  a 
residence permit, valid for at least 3 years or 1 year respectively and renewable, as soon as 
possible  after  the  status  has  been  granted,  unless  compelling  reasons  of  national  security  or 
public order otherwise require.  

A number of Member States are reported to provide for residence permits for refugees with a 
validity of more than 3 years (AT, BE, BG, FI, HU, IE, LT, SI, SE, UK). At least 7 Member 
States  grant  beneficiaries  of  subsidiary  protection  residence  permits  longer  than  the  1  year 
prescribed as a minimum by the Directive: 2 years (PL), 3 years (BG, IE, SI), 4 years or more 
(HU, LV, NL, UK).  

5.5.8.  Travel documents – Article 25 

Article 25(2) provides that Member States shall issue to beneficiaries of subsidiary protection 
who are unable to obtain a national passport documents which enable their holders to travel, 
at least when serious humanitarian reasons arise that require their presence in another State, 
unless  compelling  reasons  of  national  security  or  public  order  otherwise  require.  Only  344 
apply this limitation regarding the reasons for travelling (AT, ES, LU). 

44 

amongst the 19 Member States which replied to the survey conducted by the Commission 

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5.5.9.  Access to employment – Article 26  

A vast majority of Member States authorise access to the labour market not only for refugees 
but also for beneficiaries of subsidiary protection. Only 3 Member States (CY, DE and LU) 
are  reported  to  make  use  of  the  possibility to apply the  limitation allowed  by  Article  26(3). 
Several problems are reported with regard to access of beneficiaries of subsidiary protection 
to  employment-related  education  opportunities  for  adults,  vocational  training  and  practical 
workplace  experience  (CY,  CZ,  EE,  LT,  SK,  SI,  UK).  On  the  other  hand,  some  Member 
States  ensure  the  same  rights  for  beneficiaries  of  subsidiary  protection  and  refugees  as  for 
nationals (e.g. FI, IE, RO). 

5.5.10.  Access to education – Article 27 

According to Article 27(3), refugees and beneficiaries of subsidiary protection should enjoy 
equal treatment with nationals in the context of the existing recognition procedures for foreign 
diplomas, certificates and other evidence of formal qualifications. Several Member States did 
not  transpose  this  provision  (e.g.  BG,  LT,  UK).  In  practice,  recurrent  difficulties  have  been 
reported  due  to  the  fact  that  beneficiaries  of  international  protection  often  lack  the 
documentary evidence of their qualifications. 

5.5.11.  Social welfare – Article 28  

Reportedly, some Member States45 use the possibility to reduce the access of beneficiaries of 
subsidiary  protection  to  social  welfare  to  core  benefits  according  to  Article  28(2).  LT 
excludes  beneficiaries  of  subsidiary  protection  from  social  welfare  due  to  the  temporary 
nature of their residence permit. DE imposes an additional criterion of 3-year legal residence 
in relation to support grants for children and education awarded to beneficiaries of subsidiary 
protection. 

5.5.12.  Healthcare – Article 29 

Only  LT  and  MT  appear  to  apply  the  possibility  provided  by  Article  29(2)  to  reduce  the 
access of beneficiaries of subsidiary  protection  to healthcare to  core benefits. In AT, due to 
the  federal  system,  the  level  of  benefits  granted  to  beneficiaries  of  subsidiary  protection 
depends on the region they are hosted by. In DE, in cases of subsidiary protection, there is no 
access  to  some  specific  benefits  concerning  medical  treatment.  Reportedly,  several  Member 
States  (e.g.  BG,  EE,  CZ,  UK)  did  not  transpose  the  obligation  set  out  in  Article  29(3)  to 
provide  adequate  health  care  to  beneficiaries  of  international  protection  who  have  special 
needs, while its implementation seems problematic in others (e.g. LV, LT, IE, ES, RO).  

5.5.13.  Access to accommodation – Article 31 

Several Member States (e.g. AT, IE LV, PL, SI) appear to provide more favourable standards, 
with  a  view  to  providing  the  standards  required  in  Article  21  of  the  Geneva  Convention, 
which calls for "treatment as favourable as possible". Beneficiaries of international protection 
are  given  the  same  rights  as  nationals  concerning  accommodation  in  some  Member  States 
(e.g. IE, RO and SE).  

45 

e.g. AT, DE, LU, LV, PT, SK 

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5.5.14.  Access to integration facilities – Article 33 

At  least  16  Member  States46  do  not  differentiate  between  refugees  and  beneficiaries  of 
subsidiary protection with respect to access to integration facilities. However, the integration 
programmes provided for are sometimes very limited and may cover only language training or 
financial  loans.  In  HU,  access  of  beneficiaries  of  international  protection  to  integration 
programmes is reported to be granted on a discretionary basis and to be ineffective due to the 
absence of implementation measures. Legal provisions in BG are vague and do not guarantee 
sustainability of the programmes.  Several  Member  States  (e.g.  EE,  IE,  LV)  do  not  formally 
provide  for  integration  programmes  for  beneficiaries  of  international  protection.  However, 
both  protection  groups  are  reported  to  have  access  to  integration  facilities  in  some  of  them 
(e.g. IE). 

6. 

CONCLUSION 

Several  issues  of  incomplete  and/or  incorrect  transposition  of  the  Directive  have  been 
identified. This includes the implementation of standards lower than those established by the 
Directive.  Deficiencies  were  identified  in  the  provisions  of  the  directive  themselves,  the 
vagueness and ambiguity of several concepts such as actors of protection, internal protection, 
membership of a particular social group leaving room for widely divergent interpretations by 
the Member States. Thus, important disparities subsist among Member States in the granting 
of  protection  and  the  form  of  the  protection  granted.  Furthermore,  an  important  share  of 
decisions  at  first  instance  based  on  criteria  which  are  insufficiently  clear  and  precise  are 
overturned on appeal.  

The  evaluation  of  the  implementation  of  the  Directive  shows  that  in  practice  few  Member 
States  make  use  of  the  possibility  to  differentiate  between  refugees  and  beneficiaries  of 
subsidiary protection in terms of the content of the protection granted. On the other hand, the 
level of protection granted in different Member States differs, which affects asylum flows and 
is a cause of secondary movements.  

The present report shows that the objective of creating a level playing field with respect to the 
qualification  and  status  of  beneficiaries  of  international  protection  and  to  the  content  of  the 
protection granted has not been fully achieved during the first phase of harmonization. 

The  Commission  will  continue  to  examine  and  pursue  all  cases  where  problems  of 
transposition and/or implementation were identified, so as to ensure the correct application of 
the common standards set by the Directive in particular with regard to the full respect of the 
rights laid down in the EU Charter of Fundamental Rights as well as to reduce the scope for 
divergences. The divergences in the implementation by Member States of the Directive which 
are  due  to  the  vagueness  and  the  ambiguity  of  the  standards  themselves  could  only  be 
addressed by the legislative amendment of the relevant provisions. On the basis of a thorough 
evaluation  of  the  implementation  of  the  Directive,  the  Commission  adopted  on  21  October 
2009  a  proposal  to  recast  the  Qualification  Directive  in  order  to  remedy  to  the  deficiencies 
identified. 

46 

BG, BE, ES, FR, HU, IE, IT, LT, LU, NL, PL, PT, RO, SI, SE, UK 

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