M and Others v Commissaire général aux réfugiés et aux apatrides.
Date: 2019-05-14
50


Although the Court has previously ruled, in the judgment of 24 June 2015, H. T. (C‑373/13, EU:C:2015:413, paragraphs 71 and 94 to 98), on the connection between Article 33(2) of the Geneva Convention and Directive 2011/95, it has not yet examined the issue of the compatibility of Article 14(4) and (6) of that directive with Article 1(C) and Article 42(1) of the Geneva Convention; nor, by extension, has it examined the issue of the compatibility of those provisions with Article 78(1) TFEU, Article 18 of the Charter, and the general principles of EU law under Article 6(3) TEU.
60


Account should also be taken of the potentially far-reaching consequences of that exclusion clause, since it involves the loss of rights and benefits connected with refugee status. Thus, in its judgment of 24 June 2015, H. T. (C‑373/13, EU:C:2015:413, paragraph 95), the Court clearly recalled that the revocation of a residence permit and the revocation of refugee status are two distinct issues with different implications. Indeed, the UNHCR, in an opinion entitled ‘UNHCR Annotated Comments on [Directive 2004/83]’ published in January 2005, was particularly critical with respect to identical provisions set out in Directive 2004/83.
68


In that regard, the German Government considers that such a question calls for a negative response with regard to the requests for a preliminary ruling in Cases C‑77/17 and C‑78/17, in so far as those requests seek, in essence, to obtain an interpretation of the Geneva Convention, whereas, as is apparent from the case-law resulting from the judgment of 17 July 2014, Qurbani (C‑481/13, EU:C:2014:2101, paragraphs 20, 21 and 28), the Court’s jurisdiction to interpret that convention is limited.
71


In that regard, it follows from Article 19(3)(b) TEU and point (b) of the first paragraph of Article 267 TFEU that the Court has jurisdiction to give preliminary rulings on the interpretation and the validity of acts adopted by the EU institutions, without exception, as those acts must be entirely compatible with the Treaties, the constitutional principles stemming therefrom, and the Charter (see, to that effect, judgment of 27 February 2018, Western Sahara Campaign UK, C‑266/16, EU:C:2018:118, paragraphs 44 and 46).
74


Thus, although the European Union is not a contracting party to the Geneva Convention, Article 78(1) TFEU and Article 18 of the Charter nonetheless require it to observe the rules of that convention. Directive 2011/95 must therefore, pursuant to those provisions of primary law, observe those rules (see, to that effect, judgments of 1 March 2016, Alo and Osso, C‑443/14 and C‑444/14, EU:C:2016:127, paragraph 29 and the case-law cited, and of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraph 53 and the case-law cited).
77


In that regard, it should be borne in mind that, in accordance with a general principle of interpretation, an EU measure must be interpreted, as far as possible, in such a way as not to affect its validity and in conformity with primary law as a whole and, in particular, with the provisions of the Charter (judgment of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 48 and the case-law cited). Thus, if the wording of secondary EU law is open to more than one interpretation, preference should be given to the interpretation which renders the provision consistent with primary law rather than to the interpretation which leads to its being incompatible with that law (judgment of 26 June 2007, Ordre des barreaux francophones et germanophone and Others, C‑305/05, EU:C:2007:383, paragraph 28 and the case-law cited).
79


As is apparent from recital 12 of Directive 2011/95, the provisions thereof are intended to ensure the application of common criteria for the identification of persons in need of international protection and to ensure that a minimum level of benefits is available for those persons in all Member States.
80


In that regard, it should be borne in mind, as is confirmed by recital 3 of Directive 2011/95, that the Common European Asylum System, of which that directive is part, is based on the full and inclusive application of the Geneva Convention and the Protocol and on the guarantee that nobody will be sent back to a place where they again risk being persecuted (see, to that effect, judgments of 21 December 2011, N. S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraph 75, and of 1 March 2016, Alo and Osso, C‑443/14 and C‑444/14, EU:C:2016:127, paragraph 30).
81


In addition, it is apparent from recitals 4, 23 and 24 of Directive 2011/95 that the Geneva Convention constitutes the cornerstone of the international legal regime for the protection of refugees and that the provisions of that directive for determining who qualifies for refugee status and the content thereof were adopted to guide the competent authorities of the Member States in the application of that convention on the basis of common concepts and criteria in order to recognise applicants for asylum as having refugee status for the purposes of Article 1 of that convention (see, to that effect, judgments of 31 January 2017, Lounani, C‑573/14, EU:C:2017:71, paragraph 41, and of 13 September 2018, Ahmed, C‑369/17, EU:C:2018:713, paragraph 40 and the case-law cited).
88


According to settled case-law of the Court, where there is divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the general scheme and the purpose of the rules of which it forms part (judgments of 1 March 2016, Alo and Osso, C‑443/14 and C‑444/14, EU:C:2016:127, paragraph 27, and of 24 January 2019, Balandin and Others, C‑477/17, EU:C:2019:60, paragraph 31). In that regard, while Chapter III of Directive 2011/95 is entitled ‘Qualification for being a refugee’, Chapter IV of that directive is entitled ‘Refugee status’ and contains Article 13, which governs the granting of that status, and Article 14, which governs the revocation and ending of, as well as the refusal to renew that status.
89


As regards Article 13 of Directive 2011/95, the Court has held that, pursuant to that provision, Member States are to grant refugee status to all third-country nationals or stateless persons who satisfy the material conditions for qualification as a refugee in accordance with Chapters II and III of that directive, without having any discretion in that respect (see, to that effect, judgments of 24 June 2015, H. T., C‑373/13, EU:C:2015:413, paragraph 63, and of 12 April 2018, A and S, C‑550/16, EU:C:2018:248, paragraphs 52 and 54).
94


However, it should, in the first place, be noted that, while Article 33(2) of the Geneva Convention denies the refugee the benefit, in such circumstances, of the principle of non-refoulement to a country where his life or freedom would be threatened, Article 21(2) of Directive 2011/95 must, as is confirmed by recital 16 thereof, be interpreted and applied in a way that observes the rights guaranteed by the Charter, in particular Article 4 and Article 19(2) thereof, which prohibit in absolute terms torture and inhuman or degrading punishment or treatment irrespective of the conduct of the person concerned, as well as removal to a State where there is a serious risk of a person being subjected to such treatment. Therefore, Member States may not remove, expel or extradite a foreign national where there are substantial grounds for believing that he will face a genuine risk, in the country of destination, of being subjected to treatment prohibited by Article 4 and Article 19(2) of the Charter (see, to that effect, judgments of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraphs 86 to 88, and of 24 April 2018, MP (Subsidiary protection of a person previously a victim of torture), C‑353/16, EU:C:2018:276, paragraph 41).
99


In the event that a Member State decides to revoke or not to grant refugee status under Article 14(4) or (5) of Directive 2011/95, it is true that the third-country nationals or the stateless persons concerned will be denied that status and thus will not or will no longer be entitled to all the rights and benefits set out in Chapter VII of that directive, those rights and benefits being associated with that status. However, as is explicitly stated in Article 14(6) of that directive, those persons are, or continue to be entitled to a certain number of rights laid down in the Geneva Convention (see, to that effect, judgment of 24 June 2015, H. T., C‑373/13, EU:C:2015:413, paragraph 71), which, as the Advocate General emphasised in point 100 of his Opinion, confirms that they are, or continue to be refugees for the purposes of, inter alia, Article 1(A) of that convention, in spite of that revocation or refusal.
102


Regarding, first of all, the conjunction ‘or’ used in Article 14(6) of Directive 2011/95, that conjunction may, linguistically, have an alternative or a cumulative sense and must consequently be read in the context in which it is used and in light of the objectives of the act in question (see, by analogy, judgment of 12 July 2005, Commission v France, C‑304/02, EU:C:2005:444, paragraph 83). In the present case, having regard to the context and objective of Directive 2011/95 as set out in recitals 3, 10 and 12 thereof, and taking account of the case-law cited in paragraph 77 above, that conjunction must, in Article 14(6) of that directive, be understood in a cumulative sense.
106


It should, however, be emphasised that, despite being denied the residence permit attached to refugee status under Directive 2011/95, a refugee covered by one of the scenarios referred to in Article 14(4) and (5) thereof may be authorised, on another legal basis, to stay lawfully in the territory of the Member State concerned (see, to that effect, judgment of 24 June 2015, H. T., C‑373/13, EU:C:2015:413, paragraph 94). In such a situation, Article 14(6) of that directive in no way prevents that Member State from guaranteeing that the person concerned is entitled to all the rights which the Geneva Convention attaches to ‘being a refugee’.