Shajin Ahmed v Bevándorlási és Menekültügyi Hivatal.
Date: 2018-09-13
30


The referring court therefore considers it necessary to clarify the interpretation of Article 17(1)(b) of Directive 2011/95, which concerns exclusion from subsidiary protection status, in the light of, inter alia, the Court of Justice’s interpretation of Article 12(2)(b) and (c) of Directive 2004/83, now Article 12(2)(b) and (c) of Directive 2011/95, relating to exclusion from refugee status, in the judgment of 9 November 2010, B and D (C‑57/09 and C‑101/09, EU:C:2010:661, paragraph 87), according to which the competent authority of the Member State concerned cannot apply that provision until it has undertaken, for each individual case, an assessment of the specific facts within its knowledge, with a view to determining whether there are serious reasons for considering that the acts committed by the person in question, who otherwise satisfies the conditions for refugee status, are covered by one of the two grounds for exclusion laid down by that provision.
36


In this regard, it must be recalled at the outset that, in accordance with the need for a uniform application of EU law and the principle of equality, the wording of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, and that interpretation must take into account, inter alia, the context of that provision and the objective pursued by the rules of which it is part (see, to that effect, judgments of28 July 2016, JZ, C‑294/16 PPU, EU:C:2016:610, paragraphs 35 to 37; of 26 July 2017, Ouhrami, C‑225/16, EU:C:2017:590, paragraph 38; and of 12 April 2018, A and S, C‑550/16, EU:C:2018:248, paragraph 41).
37


It is apparent from recital 12 of Directive 2011/95 that one of its main objectives is to ensure that all Member States apply common criteria for the identification of persons genuinely in need of international protection. It also follows from Article 78(1) TFEU that the common policy which the European Union is to develop on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement must be in accordance with the Geneva Convention.
38


In that context, it should be noted that, like Directive 2004/83, Directive 2011/95, in connection with the concept of ‘international protection’, refers to two separate systems of protection, namely the system governing refugee status and the system relating to subsidiary protection status (see, as regards Directive 2004/83, judgment of 8 May 2014, N., C‑604/12, EU:C:2014:302, paragraph 26).
39


As is apparent from recitals 6 and 33 of Directive 2011/95, subsidiary protection is intended to be complementary and additional to the protection of refugees enshrined in the Geneva Convention (judgment of 1 March 2016, Alo and Osso, C‑443/14 and C‑444/14, EU:C:2016:127, paragraph 31).
40


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 (judgment of 1 March 2016, Alo and Osso, C‑443/14 and C‑444/14, EU:C:2016:127, paragraph 28 and the case-law cited).
41


The Court of Justice had held on numerous occasions that the provisions of that directive, like those of Directive 2004/83, must, consequently, be interpreted in the light of its general scheme and purpose, and in a manner consistent with the Geneva Convention and the other relevant treaties referred to in Article 78(1) TFEU (judgments of 9 November 2010, B and D, C‑57/09 and C‑101/09, EU:C:2010:661, paragraph 78; of 1 March 2016, Alo and Osso, C‑443/14 and C‑444/14, EU:C:2016:127, paragraph 29; and of 31 January 2017, Lounani, C‑573/14, EU:C:2017:71, paragraph 42).
42


While those considerations are, in so far as they pertain to the Geneva Convention, relevant solely in relation to the conditions for determining who qualifies for refugee status and the content of that status, since the system laid down by the convention applies only to refugees and not to beneficiaries of subsidiary protection status, it is, however, apparent from recitals 8, 9 and 39 of Directive 2011/95 that the EU legislature intended to establish a uniform status for all beneficiaries of international protection (see, to that effect, judgment of 1 March 2016, Alo and Osso, C‑443/14 and C‑444/14, EU:C:2016:127, paragraphs 31 and 32).
46


Nevertheless, while those grounds for exclusion are structured around the concept of ‘serious crime’, the scope of the ground for exclusion laid down by Article 17(1)(b) of Directive 2011/95 is broader than that of the ground for exclusion from refugee status laid down by Article 1(F)(b) of the Geneva Convention and Article 12(2)(b) of Directive 2011/95.
47


While the ground for exclusion from refugee status laid down by that provision refers to a serious non-political crime committed outside the country of refuge prior to admission of the person concerned as a refugee, the ground for exclusion from subsidiary protection laid down by Article 17(1)(b) of Directive 2011/95 refers more generally to a serious crime and is therefore limited neither territorially nor temporally, or as to the nature of the crimes at issue.
48


It should be recalled that, in the judgment of 9 November 2010, B and D (C‑57/09 and C‑101/09, EU:C:2010:661, paragraph 87), the Court held that it is clear from the wording of Article 12(2)(b) and (c) of Directive 2004/83, now Article 12(2)(b) and (c) of Directive 2011/95, that the competent authority of the Member State concerned cannot apply that provision until it has undertaken, for each individual case, an assessment of the specific facts within its knowledge, with a view to determining whether there are serious reasons for considering that the acts committed by the person in question, who otherwise satisfies the conditions for refugee status, are covered by one of the two grounds for exclusion laid down by that provision.
49


It follows that any decision to exclude a person from refugee status must be preceded by a full investigation into all the circumstances of his individual case and cannot be taken automatically (see, to that effect, judgment of 9 November 2010, B and D, C‑57/09 and C‑101/09, EU:C:2010:661, paragraphs 91 and 93).
51


Like the grounds for exclusion from refugee status, the purpose underlying the grounds for exclusion from subsidiary protection is to exclude from subsidiary protection status persons who are deemed to be undeserving of the protection which that status entails and to maintain the credibility of the Common European Asylum System, which includes both the approximation of rules on the recognition of refugees and the content of refugee status and measures on subsidiary forms of protection, offering an appropriate status to any person in need of such protection (see, to that effect, as regards Directive 2004/83 and refugee status, judgment of 9 November 2010, B and D, C‑57/09 and C‑101/09, EU:C:2010:661, paragraphs 104 and 115).
55


In that regard, it is important to note that, while the criterion of the penalty provided for under the criminal legislation of the Member State concerned is of particular importance when assessing the seriousness of the crime justifying exclusion from subsidiary protection pursuant to Article 17(1)(b) of Directive 2011/95, the competent authority of the Member State concerned may apply the ground for exclusion laid down by that provision only after undertaking, for each individual case, an assessment of the specific facts brought to its attention with a view to determining whether there are serious grounds for taking the view that the acts committed by the person in question, who otherwise satisfies the qualifying conditions for the status applied for, come within the scope of that particular ground for exclusion (see, by analogy, judgments of 9 November 2010, B and D, C‑57/09 and C‑101/09, EU:C:2010:661, paragraph 87, and of 31 January 2017, Lounani, C‑573/14, EU:C:2017:71, paragraph 72).
58


In the light of the foregoing considerations, the answer to the question referred is that Article 17(1)(b) of Directive 2011/95 must be interpreted as precluding legislation of a Member State pursuant to which the applicant for subsidiary protection is deemed to have ‘committed a serious crime’ within the meaning of that provision, which may exclude him from that protection, on the basis of the sole criterion of the penalty provided for a specific crime under the law of that Member State. It is for the authority or competent national court ruling on the application for subsidiary protection to assess the seriousness of the crime at issue, by carrying out a full investigation into all the circumstances of the individual case concerned.