Mohamed M’Bodj v État belge.
Date: 2014-12-18
30. It should be noted, in that regard, that the three types of serious harm defined in Article 15 of Directive 2004/83 constitute the conditions to be fulfilled if a person is to be eligible for subsidiary protection, where, in accordance with Article 2(e) of that directive, substantial grounds have been shown for believing that the applicant faces a real risk of such harm if returned to the country of origin concerned (judgments in Elgafaji , C‑465/07, EU:C:2009:94, paragraph 31, and Diakité , C‑285/12, EU:C:2014:39, paragraph 18).
34. Certain factors specific to the context in which Article 15(b) of Directive 2004/83 occurs must, in the same way as the directive’s objectives, also be taken into account for the purpose of interpreting that provision (see, to that effect, judgment in Maatschap L.A. en D.A.B. Langestraat en P. Langestraat-Troost , C‑11/12, EU:C:2012:808, paragraph 27 and the case-law cited).
35. Accordingly, Article 6 of Directive 2004/83 sets out a list of those deemed responsible for inflicting serious harm, which supports the view that such harm must take the form of conduct on the part of a third party and that it cannot therefore simply be the result of general shortcomings in the health system of the country of origin.
36. Similarly, recital 26 in the preamble to Directive 2004/83 states that risks to which the population of a country or a section of the population is generally exposed do not normally in themselves create an individual threat which would qualify as serious harm. It follows that the risk of deterioration in the health of a third country national suffering from a serious illness as a result of the absence of appropriate treatment in his country of origin is not sufficient, unless that third country national is intentionally deprived of health care, to warrant that person being granted subsidiary protection.
38. The requirement to interpret Article 15(b) of Directive 2004/83 in a manner consistent with Article 19(2) of the Charter (see, to that effect, judgment in Abed El Karem El Kott and Others , C‑364/11, EU:C:2012:826, paragraph 43 and the case-law cited), to the effect that no person may be returned to a State in which there is a serious risk that that person will be subjected to inhuman and degrading treatment, and having due regard for Article 3 of the ECHR, to which Article 15(b), in essence, corresponds (judgment in Elgafaji , EU:C:2009:94, paragraph 28), is not such as to call that interpretation into question.
40. None the less, the fact that a third country national suffering from a serious illness may not, under Article 3 ECHR as interpreted by the European Court of Human Rights, in highly exceptional cases, be removed to a country in which appropriate treatment is not available does not mean that that person should be granted leave to reside in a Member State by way of subsidiary protection under Directive 2004/83.
42. None the less, Article 3 of Directive 2004/83 allows Member States to introduce or retain more favourable standards for determining, inter alia, who qualifies as a person eligible for subsidiary protection, in so far as those standards are compatible with the directive (see, to that effect, judgment in B and D , C‑57/09 and C‑101/09, EU:C:2010:661, paragraph 114).
44. In the light of the considerations set out at paragraphs 35 to 37 above, it would be contrary to the general scheme and objectives of Directive 2004/83 to grant refugee status and subsidiary protection status to third country nationals in situations which have no connection with the rationale of international protection.