CJEU - Joined cases C 57/09 and C 101/09 / Judgment Bundesrepublik Deutschland v B, and D

Key facts of the case:
 
Two Turkish nationals of Kurdish ethnicity had applied for asylum in Germany. 
In the first case (C-57/09) the lower administrative courts took the position that asylum had to be granted notwithstanding the fact that the applicant had, on the side of Dev Sol, not only participated in “armed guerrilla warfare”, but also killed “a fellow prisoner suspected to be an informant”, because the applicant presented no danger to the public security of the host country.
In the second case (C-101/09) the German asylum authority withdrew, after entry into force of national legislation combating terrorism (“Terrorismusbekämpfungsgesetz”) the status of a refugee granted before, a decision which was annulled by the lower administrative courts.
In both cases the administrative court of third instance referred to CJ.
 
Results (sanctions) and key consequences of the case:
 
The Court (Grand Chamber) hereby rules:
  1. Article 12(2)(b) and (c) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted must be interpreted as meaning that:
  • the fact that a person has been a member of an organisation which, because of its involvement in terrorist acts, is on the list forming the Annex to Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and that that person has actively supported the armed struggle waged by that organisation does not automatically constitute a serious reason for considering that that person has committed ‘a serious non-political crime’ or ‘acts contrary to the purposes and principles of the United Nations’; 
  • the finding, in such a context, that there are serious reasons for considering that a person has committed such a crime or has been guilty of such acts is conditional on an assessment on a case-by-case basis of the specific facts, with a view to determining whether the acts committed by the organisation concerned meet the conditions laid down in those provisions and whether individual responsibility for carrying out those acts can be attributed to the person concerned, regard being had to the standard of proof required under Article 12(2) of the directive.
  1. Exclusion from refugee status pursuant to Article 12(2)(b) or (c) of Directive 2004/83 is not conditional on the person concerned representing a present danger to the host Member State.
  2. The exclusion of a person from refugee status pursuant to Article 12(2)(b) or (c) of Directive 2004/83 is not conditional on an assessment of proportionality in relation to the particular case.
  3. Article 3 of Directive 2004/83 must be interpreted as meaning that Member States may grant a right of asylum under their national law to a person who is excluded from refugee status pursuant to Article 12(2) of the directive, provided that that other kind of protection does not entail a risk of confusion with refugee status within the meaning of the directive.