C-901/19: AG Pikamaë interprets Article 15(c) of the Qualification Directive

Thursday, February 11, 2021

On 11 February 2021, AG Pikamaë delivered his opinion in case C-901/19 on the interpretation of Article 15(c) of the Qualification Directive (Directive 2011/95).
The case before the national court concerns two Afghan nationals from the Afghan province of Nangarhar, whose applications for international protection in Germany were rejected. Even though a first recourse was unsuccessful, the applicants turned to the German Higher Administrative Court, which stayed the proceedings and referred several preliminary questions to the CJEU.  
More specifically, the referring Court asked (i) how the degree of arbitrary violence in an armed conflict should be measured in the context of an assessment of an application for subsidiary protection under Article 15(c) of the Qualification Directive and (ii) whether the obtainment of such protection can be conditional upon compliance with a quantitative criterion relating to a minimum number of casualties - wounded or dead - in the conflict area in relation to the population of the area concerned.
The AG first highlighted the judgment of Elgafaji, in which the CJEU held that subsidiary protection may be granted, on the basis of Article 15(c), in case the degree of indiscriminate violence in an ongoing armed conflict entails that a citizen returning to the country or area concerned would run a real risk of an individual and serious threat to the life or person of an applicant, simply by his or her presence there. Furthermore, it held that the more the applicant is able to show that he or she is specifically affected because of personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection, which, according to the AG, excludes a purely quantitative interpretation of Article 15(c).
Finally, the AG underlined that the application of the conditions under Article 15(c) Qualification Directive, in principle, should be left to the national judge. Nonetheless, Pikamaë enumerated several findings in previous judgments that could be taken into consideration based on the CJEU, ECtHR and national jurisprudence. In conclusion, he underlined that Article 15(c) requires a comprehensive and dynamic cross-analysis of all the relevant data collected by national authorities and that the circumstances identified during the application for subsidiary protection must not be taken in isolation but must be combined with each other in order to determine the existence of serious and individual threats. He proposes the CJEU to simply remind the referring court of the existing criteria and complement them where necessary, without trying to be exhaustive.

Based on an unofficial translation by the EWLU team.

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Assessment of facts and circumstances
Indiscriminate violence
Individual assessment
Serious harm
Subsidiary Protection