1 This request for a preliminary ruling concerns the interpretation of Article 3 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9).
2 The request has been made in proceedings between A.B., a third-country national, and the Ministerstvo vnitra, Odbor azylové a migrační politiky (Ministry of the Interior, Department of Asylum and Migration Policy, Czech Republic) (‘the Ministry’) concerning a decision of the latter refusing to grant A.B. international protection.
3 Article 5 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98) provides: ‘When implementing this Directive, Member States shall take due account of: and respect the principle of non-refoulement.’
4 Recital 14 of Directive 2011/95 is worded as follows: ‘Member States should have the power to introduce or maintain more favourable provisions than the standards laid down in this Directive for third-country nationals or stateless persons who request international protection from a Member State, where such a request is understood to be on the grounds that the person concerned is either a refugee within the meaning of Article 1(A) of the Geneva Convention, or a person eligible for subsidiary protection.’
5 Article 2(d) and (f) of that directive states: ‘For the purposes of this Directive, the following definitions apply:
6 Article 3 of that directive provides: ‘Member States may introduce or retain more favourable standards for determining who qualifies as a refugee or as a person eligible for subsidiary protection, and for determining the content of international protection, in so far as those standards are compatible with this Directive.’
7 Article 4(3)(a) of that directive provides: ‘The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account:
8 Article 6 of Directive 2011/95 is worded as follows: ‘Actors of persecution or serious harm include:
9 Article 8(1) of that directive provides: ‘As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin, he or she: and he or she can safely and legally travel to and gain admittance to that part of the country and can reasonably be expected to settle there.’
10 Article 10(1)(d) of that directive provides: ‘Member States shall take the following elements into account when assessing the reasons for persecution: … Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States. …’
11 Article 15 of that directive is worded as follows: ‘Serious harm consists of:
12 Paragraph 14a of Zákon č. 325/1999 Sb. o azylu (Law No 325/1999 on asylum), of 11 November 1999, in the version in force until 30 June 2023 (‘the Law on asylum), provided: ‘1. Subsidiary protection shall be granted to a foreign national who does not qualify for asylum if, in the context of the procedure for granting international protection, it is established that, in his or her case, there are legitimate grounds for fearing that, if returned to the State of which he or she is a national or, in the case of a stateless person, to the State in which he or she had his or her last permanent residence, he or she would be exposed to a real risk of suffering serious harm, within the meaning of subparagraph 2, and that it is established that, because of that risk, he or she is not eligible for the protection of the State of which he or she is a national or in which his or her last permanent residence is situated, or that he or she is not willing to take advantage of such protection. 2. For the purposes of this law, serious harm means:
13 A.B. arrived in the Czech Republic in July 2006. His stay in the territory of that Member State was legal for most of the period from his entry into that territory until the rejection by the Czech authorities of an application for an extension of his residence permit submitted in August 2018. Subsequently, in April 2019, he lodged an application for international protection in that Member State.
14 That application was rejected, for the first time, by a decision of the Ministry adopted in February 2020. By judgment of 17 June 2021, the Krajský soud v Praze (Regional Court, Prague, Czech Republic) annulled that first decision.
15 The Ministry re-examined the application for international protection lodged by A.B. and rejected it, a second time, by decision of 20 October 2022. By judgment of 17 May 2023, the Krajský soud v Brně (Regional Court, Brno, Czech Republic), which is the referring court, annulled that second decision.
16 The reasons given for the annulment of both those decisions were essentially based on the incomplete nature of the information gathered by the Ministry on A.B.’s private and family life and on the finding that the Ministry had not sufficiently examined certain factors relating to that private and family life, such as the length of his stay in the Czech Republic, his integration in that Member State, his state of health, the death of his wife in that Member State or his lack of social and family ties in his country of origin.
17 By decision of 9 November 2023, the Ministry rejected, for a third time, A.B.’s application for international protection, mainly on the ground that, following an examination of all the relevant factors, it appeared that A.B. had no strong social or private ties in the Czech Republic. A.B. brought an action against the third decision before the referring court.
18 The referring court states that the judgments of 17 June 2021 and of 17 May 2023, like the Ministry’s assessment, were based on an interpretation of Paragraph 14a(2)(d) of the Law on asylum, consistently followed by the Czech courts. According to that interpretation, that provision was applicable in all situations in which the removal of the applicant would lead to a breach of the Czech Republic’s international obligations. In accordance with that interpretation, that provision involved, inter alia, granting subsidiary protection to third-country nationals whose right to private and family life would be infringed in the event of removal from the Czech Republic.
19 However, by order of 15 February 2024, the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic), sitting in extended composition, adopted a different interpretation of Paragraph 14a(2)(d) of the Law on asylum. That court held that subsidiary protection could be granted, on the basis of that provision, to a third-country national only if his or her removal would expose him or her, in the country of origin, to a breach of the Czech Republic’s international obligations. Consequently, according to that different interpretation, subsidiary protection could no longer be granted to the applicant on account of an interference with his or her private or family life in the Czech Republic, in the event of removal.
20 The referring court has doubts as to the compatibility of that different interpretation with Article 3 of Directive 2011/95. It considers that that directive allows international protection to be granted in situations which do not fall within the scope of subsidiary protection, as defined by that directive, and which go beyond the cases which the Member States may decide to bring under subsidiary protection pursuant to Article 3, which authorises Member States to adopt more favourable standards for granting that protection, provided that those standards are compatible with that directive.
21 The referring court therefore considers that Paragraph 14a(2)(d) of the Law on asylum is, in any event, incompatible with Directive 2011/95 and that that provision cannot be interpreted in a manner that is consistent with that directive. Nevertheless, the application of that provision cannot be ruled out in the main proceedings, since it is not possible to apply a provision of a directive directly to the detriment of an individual. Therefore, if the interpretation of Paragraph 14a(2)(d) of the Law on asylum adopted in the order of the Nejvyšší správní soud (Supreme Administrative Court) of 15 February 2024, delivered in extended chamber, is not compatible with Directive 2011/95, the referring court considers that it should interpret that provision by following the approach adopted by the Czech courts before that order.
22 In those circumstances the Krajský soud v Brně (Regional Court, Brno) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Must Article 3 of Directive [2011/95] be interpreted as meaning that the legislation of a Member State permitting the granting of subsidiary protection to an applicant seeking international protection may be considered a more favourable standard for determining the persons eligible for subsidiary protection, as defined in that provision, including in the case of a real threat of a type of serious harm that is not recognised by Article 15 of [that directive], which consists in the fact that the departure from the Member State of the applicant seeking international protection would be contrary to the international obligations of that Member State, provided that that infringement of the Member State’s international obligations relates to the situation in the country of origin of the applicant seeking international protection?’
23 According to the settled case-law of the Court, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it. In that regard, it is for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation, having regard to the subject matter of the dispute (see, to that effect, judgments of 13 December 1984, Haug-Adrion, 251/83, EU:C:1984:397, paragraph 9, and of 30 April 2024, M.N. (EncroChat), C‑670/22, EU:C:2024:372, paragraph 78).
24 In the present case, it is apparent from the wording of the question referred that it concerns a ground for subsidiary protection based on the situation in the country of origin of the applicant for international protection.
25 However, it is apparent from the order for reference that, in the case in the main proceedings, the new ground for subsidiary protection is based, not on the situation in the country of origin of the applicant for international protection, but on the risk, for that applicant, of suffering a breach of his or her right to a private life owing to the severing of the links between that applicant and the Member State which is examining his or her application for international protection, in the event of removal to that country.
26 Therefore, the question referred must be understood as inviting the Court to determine whether Article 3 of Directive 2011/95 must be interpreted as precluding from being regarded as a more favourable standard, which may be adopted in accordance with that article, national legislation providing for the grant of subsidiary protection to a third-country national who, if removed to his or her country of origin, would face a real risk of suffering a breach of his or her right to private life on account of the severing of his or her links with the Member State examining the application for international protection.
27 In accordance with Article 2(f) of Directive 2011/95, subsidiary protection must be granted to any third-country national who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that that person, if returned to his or her country of origin, would face a real risk of suffering serious harm as defined in Article 15 of that directive, and that third-country national is not caught by an exclusion clause and is unable or, owing to such risk, unwilling to avail himself or herself of the protection of that country.
28 Under Article 15 of that directive, serious harm consists of the death penalty or execution, torture or inhuman or degrading treatment or punishment of an applicant in the country of origin, or a serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
29 As the referring court points out, it follows that serious harm, justifying the grant of subsidiary protection under Directive 2011/95, does not include infringement of the right to private life.
30 However, Article 3 of that directive allows Member States to introduce or retain ‘more favourable standards for determining who qualifies as a refugee or as a person eligible for subsidiary protection, and for determining the content of international protection, in so far as those standards are compatible with [that directive]’.
31 It is clear from that wording, read in conjunction with recital 14 of Directive 2011/95, that the more favourable standards referred to in Article 3 of that directive may, inter alia, consist in relaxing the conditions under which a third-country national can enjoy subsidiary protection status (see, to that effect, judgments of 4 October 2018, Ahmedbekova, C‑652/16, EU:C:2018:801, paragraph 70, and of 9 November 2021 Bundesrepublik Deutschland (Maintaining family unity) C‑91/20, EU:C:2021:898, paragraph 39).
32 As regards the clarification in Article 3, according to which any more favourable standard must be compatible with Directive 2011/95, the Court has held that this means that that standard must not undermine the general scheme or objectives of that directive. In particular, standards which are intended to grant refugee or subsidiary protection status to third-country nationals or to stateless persons in situations which have no connection with the rationale of international protection are prohibited (see, to that effect, judgments of 18 December 2014, M’Bodj, C‑542/13, EU:C:2014:2452, paragraph 44; of 4 October 2018, Ahmedbekova, C‑652/16, EU:C:2018:801, paragraph 71, and of 9 November 2021, Bundesrepublik Deutschland (Maintaining family unity), C‑91/20, EU:C:2021:898, paragraph 40).
33 Several provisions of Directive 2011/95 indicate that international protection is linked to the situation of the applicant, not in the Member State examining his or her application for international protection, but in his or her country of origin, in the event that he or she has to return to that country.
34 Thus, it is apparent, in the first place, from the definition of the concepts of ‘refugee’ and ‘person eligible for subsidiary protection’, set out in Article 2(d) and (f) of that directive, that the purpose of international protection is to replace the protection of the country of origin where the applicant is unable or, owing to certain fears or risks, is unwilling to avail himself or herself of the protection of that country.
35 In that regard, the Court has stated that the assessment of the ability of the country of origin to provide protection from acts of persecution, which constitutes a crucial element in the assessment which leads to the grant of refugee status, must, like the assessment of whether there is a well-founded fear of persecution, be based on an examination of the circumstances existing in the country of origin (see, to that effect, judgments of 7 November 2013, X and Others, C‑199/12 to C‑201/12, EU:C:2013:720, paragraph 43; of 19 November 2020, Bundesamt für Migration und Flüchtlinge (Military service and asylum), C‑238/19, EU:C:2020:945, paragraph 21, and of 20 January 2021, Secretary of State for the Home Department, C‑255/19, EU:C:2021:36, paragraphs 36 and 57).
36 In the second place, Article 4(3) of Directive 2011/95, which lists the factors to be taken into account when assessing an application for international protection on an individual basis, does not mention the examination of the applicant’s situation in the Member State examining the application for international protection or the examination of the consequences of severing the links between the applicant and that Member State. On the other hand, that provision requires an examination of all the relevant facts as they relate to the country of origin at the time of taking a decision on the application.
37 In the third place, the factors relied on by the EU legislature to characterise more precisely the fears and risks justifying the grant of international protection indicate that those fears and risks relate to the situation in the country of origin and, in any event, that they do not relate to the situation in the Member State examining the application for international protection.
38 First, Article 6 of Directive 2011/95 identifies ‘actors of persecution or serious harm’, as being the State, parties or organisations controlling the State or a substantial part of the territory of the State, or non-State actors against whom the State or those organisations are unable or unwilling to provide protection.
39 Since the ‘State’ referred to in Article 6 cannot logically be the Member State whose protection is sought in order to guard against the practices of actors of persecution or serious harm, the severing of the links between the applicant and that Member State cannot be regarded as arising from the conduct of one of those actors.
40 Second, Article 8 of that directive allows Member States to preclude the grant of international protection where the applicant is in fact likely not to suffer acts of persecution and serious harm, or to benefit from protection against such acts and harm in a part of his or her country of origin.
41 Third, as regards the reasons for the persecution, it should be noted, in particular, that it is apparent from the second subparagraph of Article 10(1)(d) of that directive that the existence of a ‘social group’, within the meaning of Article 10(1)(d), must be determined on the basis of the conditions prevailing in the country of origin. Similarly, the Court has held that the existence of political opinions and the causal link between them and acts of persecution must be assessed in the light of the general context of the country of origin of the applicant for international protection (see, to that effect, judgment of 12 January 2023, Migracijos departamentas (Reasons for persecution on the ground of political opinion), C‑280/21, EU:C:2023:13, paragraph 33).
42 Fourth, it follows from Article 15(b) of that directive that the serious harm referred to in that provision applies only where inhuman or degrading treatment takes place in the country of origin of the applicant for international protection (see, by analogy, judgment of 18 December 2014, M’Bodj, C‑542/13, EU:C:2014:2452, paragraph 33).
43 It follows from all of the foregoing that the grant of a residence permit on a ground that does not relate to the situation in the applicant’s country of origin must be regarded as entirely unrelated to the rationale of international protection, with the result that a Member State cannot grant subsidiary protection, within the meaning of Directive 2011/95, on the basis of such a ground, without infringing Article 3 of that directive.
44 Since it is apparent from the request for a preliminary ruling that the referring court intends to interpret the legislation at issue in the main proceedings as allowing subsidiary protection to be granted on the basis of a ground that does not relate to the situation in the applicant’s country of origin, it must be pointed out that a national court is required, when it applies the provisions of its domestic law adopted in order to transpose the obligations laid down by a directive, to ensure that the national law concerned is interpreted in conformity with EU law, in order to ensure, within the limits of its jurisdiction, that EU law is fully effective (see, to that effect, judgments of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 114, and of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraph 58).
45 It is true that the principle that national law must be interpreted in conformity with EU law has certain limits. Thus, the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of its domestic law is limited by general principles of law, particularly those of legal certainty and non-retroactivity, and that obligation cannot serve as the basis for an interpretation of the national law concerned contra legem (see, to that effect, judgments of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 110, and of 21 December 2023, BMW Bank and Others, C‑38/21, C‑47/21 et C‑232/21, EU:C:2023:1014, paragraph 222).
46 Nevertheless, the principle that national law must be interpreted in conformity with EU law requires national courts to do whatever lies within their jurisdiction, taking the whole body of their domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the directive in question is fully effective and achieving an outcome consistent with the objective pursued by it (see, to that effect, judgments of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 118 and 119, and of 15 October 2024, KUBERA, C‑144/23, EU:C:2024:881 paragraph 51).
47 In the present case, it is apparent from the request for a preliminary ruling that the Nejvyšší správní soud (Supreme Administrative Court), sitting in extended composition, interpreted, in its order of 15 February 2024, the national provision at issue as referring exclusively to the risk of infringements of the fundamental rights linked to the situation in the applicant’s country of origin. It thus appears, subject to the verifications to be carried out by the referring court, that that national provision may be interpreted in such a way as to lead, in the dispute in the main proceedings, to a solution consistent with the objective pursued by Directive 2011/95.
48 Furthermore, Article 3 of Directive 2011/95 does not prohibit a Member State from granting national protection which includes rights enabling persons who do not have refugee status and who are not eligible for subsidiary protection to reside on its territory, it being understood that the grant of such protection does not fall within the scope of that directive. It is thus open to a Member State to grant, solely by virtue of its national law, a right to stay on humanitarian grounds to third-country nationals whose return to their country of origin would infringe their right to private life, on account of the severing of their link with that Member State, provided that that right of residence cannot be confused with refugee status or subsidiary protection status, within the meaning of that directive (see, to that effect, judgments of 9 November 2010, B and D, C‑57/09 and C‑101/09, EU:C:2010:661, paragraphs 117 to 120, and of 12 September 2024, Changu, C‑352/23, EU:C:2024:748, paragraphs 48 and 49).
49 Furthermore, in so far as the rejection of the application for international protection could, depending on the circumstances, lead the competent authorities to consider adopting a return decision against A.B., it must be borne in mind that Article 5 of Directive 2008/115 is a general rule binding on the Member States as soon as they implement that directive, at all stages of the return procedure (see, to that effect, judgment of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal - Medicinal cannabis), C‑69/21, EU:C:2022:913, paragraph 55).
50 Although Article 5 of Directive 2008/115 does not mention the private life of a third-country national staying illegally in a Member State among the factors which the Member States must take into account when implementing that directive, the fact remains that the Member States are required to respect the fundamental rights granted to third-country nationals by the Charter of Fundamental Rights of the European Union and that, consequently, a return decision or a removal order cannot be adopted if it infringes the right to respect for the private life of the third-country national concerned (see, to that effect, judgment of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal - Medicinal cannabis), C‑69/21, EU:C:2022:913, paragraph 92).
51 In the light of all the foregoing, the answer to the question referred is that Article 3 of Directive 2011/95 must be interpreted as precluding from being regarded as a more favourable standard, which may be adopted in accordance with that article, national legislation providing for the grant of subsidiary protection to a third-country national who, if removed to his or her country of origin, would face a real risk of suffering a breach of his or her right to private life on account of the severing of his or her links with the Member State examining the application for international protection.
52 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.