H. T. v Land Baden-Württemberg.
Date: 2015-06-24
49. In the second place, the revocation of a residence permit appears to be consistent with the aim of that provision. If Member States are authorised to refuse to issue or renew a residence permit, where compelling reasons of national security or public order justify it, they must even more so be authorised to revoke such a residence permit or to end it where reasons of that nature arise after it has been issued.
58. In that context, the meaning and scope of those terms must be determined, in accordance with settled case-law, taking into account both the terms in which the provisions of EU law concerned are couched and their context, the objectives pursued by the legislation of which they form part (see, inter alia, judgments in Lundberg , C‑317/12, EU:C:2013:631, paragraph 19, and Bouman , C‑114/13, EU:C:2015:81, paragraph 31) and, in the circumstances of this case, the origins of that legislation (see, by analogy, judgment in Pringle , C‑370/12, EU:C:2012:756, paragraph 135).
60. In those circumstances, it is important to note that, according to settled case-law, where the language versions of a text differ, the provision in question must be interpreted and applied uniformly in the light of the versions existing in all EU languages (judgment in M. and Others , C‑627/13 and C‑2/14, EU:C:2015:59, paragraph 48 and the case-law cited).
61. The wording used in one language version of an EU law provision cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement that EU law be applied uniformly (see, to that effect, M. and Others , C‑627/13 and C‑2/14, EU:C:2015:59, paragraph 48 and the case-law cited).
62. Therefore, where there is divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to its context and the objectives pursued by the rules of which it is part (see, to that effect, M. and Others , C‑627/13 and C‑2/14, EU:C:2015:59, paragraph 49 and the case-law cited).
63. In that regard, it should first be recalled that refugee status must be afforded to a person where he meets the minimum standards set by EU law. Pursuant to Article 13 of Directive 2004/83, Member States are to grant refugee status to all third country nationals or stateless persons who qualify as a refugee in accordance with Chapters II and III of that directive. It follows from recital 14 of the same directive, according to which the recognition of refugee status is a declaratory act, that Member States exercise no discretion in that respect.
65. It should also be noted that that principle of non-refoulement is guaranteed as a fundamental right by Articles 18 and 19(2) of the Charter of Fundamental Rights of the European Union.
71. The refoulement of a refugee, while in principle authorised by the derogating provision Article 21(2) of Directive 2004/83, is only the last resort a Member State may use where no other measure is possible or is sufficient for dealing with the threat that that refugee poses to the security or to the public of that Member State. In the event that a Member State, pursuant to Article 14(4) of that directive, revokes, ends or refuses to renew the refugee status granted to a person, that person is entitled, in accordance with Article 14(6) of that directive, to rights set out inter alia in Articles 32 and 33 of the Geneva Convention.
72. The consequences for the refugee concerned of applying the derogation provided for in Article 21(2) of Directive 2004/83 are potentially very drastic, as the Advocate General noted in point 81 of her Opinion, since he might be returned to a country where he is at risk. It is for that reason that that provision subjects the practice of refoulement to rigorous conditions, since, in particular, only a refugee who has been convicted by a final judgment of a ‘particularly serious crime’ may be regarded as constituting a ‘danger to the community of that Member State’ within the meaning of that provision. Moreover, even where those conditions are satisfied, refoulement of the refugee concerned constitutes only one option at the discretion of the Member States, the latter being free to opt for other, less rigorous, options.
73. However, Article 24(1) of Directive 2004/83, whose wording is more abstract than that of Article 21(2) of that directive, pertains only to the refusal to issue a residence permit to a refugee and to the revocation of that residence permit, and not to the refoulement of that refugee. That provision therefore concerns only situations where the threat posed by that refugee to the national security, public order or public of the Member State in question cannot justify loss of refugee status, let alone the refoulement of that refugee. That is why implementation of the derogation provided for in Article 24(1) of Directive 2004/83 does not presuppose the existence of a particularly serious crime.
74. The consequences, for the refugee, of revoking his residence permit pursuant to Article 24(1) of Directive 2004/83 are therefore less onerous, in so far as that measure cannot lead to the revocation of his refugee status and, even less, to his refoulement within the meaning of Article 21(2) of that directive.
75. It follows that the concept of ‘compelling reasons’ contained in Article 24(1) of Directive 2004/83 has a broader scope than the concept of ‘serious reasons’ contained in Article 21(2) of that directive, and that certain circumstances which do not exhibit the degree of seriousness authorising a Member State to use the derogation provided for in Article 21(2) of that directive and to take a refoulement decision can nevertheless permit that Member State, on the basis of Article 24(1) of the same directive, to deny the refugee concerned his residence permit.
76. That being said, with regard to the specific question, asked by the referring court, as to whether support for a terrorist organisation may constitute one of the ‘compelling reasons of national security or public order’ within the meaning of Article 24(1) of Directive 2004/83, it should be pointed out that the concepts of ‘national security’ or ‘public order’ are not defined by that provision.
77. However, the Court has already had an opportunity to interpret the concepts of ‘public security’ and ‘public order’ contained in Articles 27 and 28 of Directive 2004/38. While that directive pursues different objectives to those pursued by Directive 2004/83 and Member States retain the freedom to determine the requirements of public policy and public security in accordance with their national needs, which can vary from one Member State to another and from one era to another (judgment in I ., C‑348/09, EU:C:2012:300, paragraph 23 and the case-law cited), the extent of the protection a company intends to afford to its fundamental interests cannot vary depending on the legal status of the person that undermines those interests.
78. Therefore, in order to interpret the concept of ‘compelling reasons of national security or public order’ contained in Article 24(1) of Directive 2004/83, it should first be taken into account that it has already been held that the concept of ‘public security’ contained in Article 28(3) of Directive 2004/38 covers both a Member State’s internal and external security (see, inter alia, judgment in Tsakouridis , C‑145/09, EU:C:2010:708, paragraph 43 and the case-law cited) and that, consequently, a threat to the functioning of the institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations or to peaceful coexistence of nations, or a risk to military interests, may affect public security (judgment in Tsakouridis , C‑145/09, EU:C:2010:708, paragraph 44). In addition, the Court has also held, in that context, that the concept of ‘imperative grounds of public security’ contained in Article 28(3) presupposes not only the existence of a threat to public security, but also that such a threat is of a particularly high degree of seriousness, as is reflected by the use of the words ‘imperative reasons’ (judgment in Tsakouridis , C‑145/09, EU:C:2010:708, paragraph 41).
79. Next, it is important to note that the concept of ‘public order’ contained in Directive 2004/38, in particular in Articles 27 and 28 thereof, has been interpreted in the case-law of the Court as meaning that recourse to that concept presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (see, to that effect, judgment in Byankov , C‑249/11, EU:C:2012:608, paragraph 40 and the case-law cited).
80. In that context, in relation to Directive 2004/83 specifically, it should be pointed out that, according to recital 28 thereof, the notions of ‘national security’ and ‘public order’ cover cases where a third country national belongs to an association which supports international terrorism or supports such an association.
81. In addition, it must be stated that Article 1(3) of Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93), in the version in force at the material date (‘Common Position 2001/931’), defines what should be understood by ‘terrorist act’; moreover, the PKK is specifically included on the list annexed to that common position.
82. It thus follows from the above considerations that support provided by a refugee to an organisation engaging in acts falling within the scope of Common Position 2001/931 constitute, in principle, a circumstance capable of establishing that the conditions for applying the derogation provided for in Article 24(1) of Directive 2004/83 are fulfilled.
83. The inclusion of an organisation on a list annexed to Common Position 2001/931 is thus, as the Advocate General observes in point 95 of her Opinion, a strong indication that it either is a terrorist organisation or is suspected to be such an organisation. Such a circumstance must thus necessarily be taken into account by the competent national authorities when they must, as a first step, determine whether the organisation in question has committed terrorist acts.
84. It is therefore important to verify, on a case by case basis, whether the acts of the organisation in question can endanger national security or public order within the meaning of Article 24(1) of Directive 2004/83. In that regard, the Court has held, in relation to Article 12(2)(b) of that directive, that terrorist acts, which are characterised by their violence towards civilian populations, even if committed with a purportedly political objective, fall to be regarded as serious non-political crimes within the meaning of that provision (judgment in B and D , C‑57/09 and C‑101/09, EU:C:2010:661, paragraph 81).
85. Furthermore, the Court has found that international terrorist acts are, generally speaking and irrespective of any State participation, contrary to the purposes and principles of the United Nations (judgment in B and D , C‑57/09 and C‑101/09, EU:C:2010:661, paragraph 83). It follows that a Member State could, in the event of such acts, justifiably rely on the existence of compelling reasons of national security or public order within the meaning of Article 24(1) of Directive 2004/83 in order to apply the derogation provided for by that provision.
86. Once that verification is complete, the competent authorities must, as a second step, conduct an assessment of the specific facts known to it, so as to determine whether support for the organisation concerned in the form of assisting in the collection of funds and regular participation in the events organised by that organisation, which would seem to have been Mr. T.’s situation in the main proceedings, falls within the scope of Article 24(1) of Directive 2004/83.
87. Even if the acts committed by an organisation on the list forming the Annex to Common Position 2001/931 because of its involvement in terrorist acts fall within the ground for derogation laid down in Article 24(1) of Directive 2004/83, the mere fact that the refugee supported that organisation cannot automatically mean that that person’s residence permit is revoked pursuant to that provision (see, by analogy, judgment in B and D , C‑57/09 and C‑101/09, EU:C:2010:661, paragraph 88).
88. There is no direct relationship between Common Position 2001/931 and Directive 2004/83 in terms of their respective aims, and it is not justifiable for a competent authority, when considering whether to deny a person his residence permit pursuant to Article 24(1) of that directive, to base its decision solely on that person’s support for an organisation which is on a list adopted outside the framework set up by Directive 2004/83 consistently with the Geneva Convention (see, to that effect, judgment in B and D , C‑57/09 and C‑101/09, EU:C:2010:661, paragraph 89).
89. It follows, in regard to the case in the main proceedings, that the circumstances in which the organisation supported by Mr T. was placed on the list annexed to Common Position 2001/931 cannot be assimilated to the individual assessment of the specific facts that has to be carried out before any decision is taken to deny a person his residence permit pursuant to Article 24(1) of Directive 2004/83 (see, by analogy, judgment in B and D , C‑57/09 and C‑101/09, EU:C:2010:661, paragraph 91).
90. Accordingly, in the context of the judicial review of the assessment carried out by the competent authority, the referring court must examine the role that Mr T. actually played in supporting that organisation, by ascertaining in particular whether he himself has committed terrorist acts, whether and to what extent he was involved in planning, decision-making or directing other persons with a view to committing acts of that nature, and whether and to what extent he financed such acts or procured for other persons the means to commit them.
91. In the present case, with regard to Mr T.’s acts of support for the PKK, it is apparent from the case-file that the refugee participated in legal meetings and manifestations such as the celebration of the Kurdish New Year and the collection of funds for that organisation. The fact that he carried out such acts does not necessarily mean that he supported the legitimacy of terrorist activities. Even more so, acts of that nature do not constitute, in themselves, terrorist acts.
92. In that context, the referring court is also obliged to assess the degree of seriousness of danger to national security or public order of the acts committed by Mr T. In particular, it must verify whether he may be charged on the basis of personal liability in the implementation of the PKK’s actions. In that respect, while it is true that Mr T.’s criminal conviction by final judgment of 3 December 2008 must be taken into account, it is nevertheless for that court to ascertain, regard being had to the principle of proportionality that the measure to be taken was required to observe, whether the threat the refugee might possibly have constituted in the past for the national security or public order of the Federal Republic of Germany still existed at the date on which the decision at issue in the main proceedings was taken.
93. In that respect, it is also the national court’s responsibility to take into account the fact that Mr T. was ordered to pay a fine and not sentenced to a term of imprisonment and to ascertain whether, in view of that fact and, if appropriate, of the nature of the acts he committed, there were ‘compelling reasons of national security or public order’, within the meaning of Article 24(1) of Directive 2004/83, justifying the revocation of Mr T.’s residence permit.
94. Those details having been provided, it is also necessary to add that the main consequence of a Member State implementing the derogation provided for in Article 24(1) of Directive 2004/83 is that the refugee in question loses his residence permit, even if he, as in the case at issue in the main proceedings, is authorised, on another legal basis, to remain lawfully in the territory of that Member State.
95. Nevertheless, it should be stated in that regard that the refugee whose residence permit is revoked pursuant to Article 24(1) of Directive 2004/83 retains his refugee status, at least until that status is actually ended. Therefore, even without his residence permit, the person concerned remains a refugee and as such remains entitled to the benefits guaranteed by Chapter VII of that directive to every refugee, including protection from refoulement, maintenance of family unity, the right to travel documents, access to employment, education, social welfare, healthcare and accommodation, freedom of movement within the Member State and access to integration facilities. In other words, a Member State has no discretion as to whether to continue to grant or to refuse to that refugee the substantive benefits guaranteed by the directive.
97. As those rights conferred on refugees result from the granting of refugee status and not from the issue of the residence permit, the refugee, as long as he holds that status, must benefit from the rights guaranteed to him by Directive 2004/83 and they may be limited only in accordance with the conditions set by Chapter VII of that directive, since Member States are not entitled to add restrictions not already listed there.
98. Accordingly, in relation to the case at issue in the main proceedings, the fact that, as is apparent from the case-file submitted to the Court, the automatic revocation of Mr T.’s residence permit, which occurred as a result of the expulsion decision, has had an impact on his access to employment, vocational training and other social rights since, under German law, the enjoyment of those rights is linked to a residence permit being lawfully held, is incompatible with Directive 2004/83.