ECJ, C-57/09 & C-101/9 Germany v. XX and XX, 2010
- 2010
- Germany
Topics
Membership in a terrorist organisationLegal bases
Treaty establishing the European Community (EC) Directive 2004/83/ECCourts
European Court of Justice (ECJ)Laws
Right of asylumFacts
Directive 2004/83/EC of 29 April 2004 establishes minimum standards for the qualification and status of third country nationals or stateless persons as refugees. According to Article 12(2)(b) and (c), persons regarding whom there are serious reasons for considering that they have committed a serious non-political crime outside the country of refuge or been guilty of acts contrary to the purposes and principles of the United Nations are excluded from this protection. Seized by the German Federal Administrative Court in the context of a dispute between the Federal Office for Migration and Refugees and two Turkish nationals of Kurdish origin to whom refugee status had been refused or withdrawn on the grounds of their past membership of the PKK, the Court interpreted these exclusion clauses provided for by the Directive.
Legal grounds
Articles 68 & 234 of the EC; Directive 2004/83/EC.
Findings
Firstly, the Court stated that the competent authorities of the Member States can apply Article 12(2) of the Directive to a person who, in the course of his membership of an organisation which is on the list forming the Annex to Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism, has been involved in terrorist acts with an international dimension. However, the mere fact that the person concerned was a member of such an organisation cannot automatically mean that that person must be excluded from refugee status. The competent authorities must undertake a specific, full investigation into all the circumstances of each individual case, in order to determine whether it is possible to attribute to the person concerned a share of the responsibility for the acts committed by the organisation in question while that person was a member. That individual responsibility is assessed in the light of both objective and subjective criteria such as the true role played by the person concerned in the perpetration of the acts in question; his position within the organisation; the extent of the knowledge he had, or was deemed to have, of its activities; any pressure to which he was exposed; or other factors likely to have influenced his conduct. Secondly, where, in the light of this assessment, it appears that the provisions of Article 12(2) of the Directive apply, the resulting exclusion from refugee status is not conditional upon a further proportionality test being undertaken in relation to the particular case. Thirdly, the application of these provisions is not conditional on the person concerned representing a present danger to the host Member State. It is a matter here of a penalty for acts committed in the past. Finally, the Court ruled that Member States may grant a right of asylum under their national law to a person who is excluded from refugee status under the above- mentioned provisions of Directive 2004/83/EC, provided that that other kind of protection does not entail a risk of confusion with refugee status within the meaning of the latter.