CJEU: Judgment in C-238/19, E.Z, regarding the interpretation of Article 9 Qualification Directive

On 19 November 2020, the CJEU delivered its preliminary ruling in the case of E.Z v Federal Republic of Germany (C-238/19), in the context of an appeal before the Administrative Court of Hannover regarding the decision to grant subsidiary protection, but refusal to grant refugee status to a Syrian conscript who fled to Germany in order to avoid military service. 
 
In this context, the Administrative Court stayed the proceedings and asked the CJEU to interpret Article 9(2)(e) & (3) of the Qualification Directive (Directive 2011/95/EU). 
The CJEU found that Article 9(2)(e) must be interpreted as not precluding a refusal of service being established in a situation in which the law of the State of origin does not provide for the possibility of refusing to perform military service, and in which the person concerned has not formalised his or her refusal and has fled his or her country of origin without presenting himself or herself first to the military authorities.
 
Furthermore, the CJEU indicated that, in the context of a civil war that is characterised by repeated and systematic commission of war crimes or crimes against humanity by the army using conscripts, it is irrelevant that the person concerned does not know what his or her future field of military operation will be. The Court noted that, with regard to the well-documented fact that the Syrian army  repeatedly and systematically committed war crimes, it is highly plausible that a conscript would be led, regardless of his or her field of operation, to participate directly or indirectly in the commission of such crimes. 
 
Nonetheless, the CJEU noted that there must be a connection between, on the one hand, the prosecution and punishment for refusal to perform military service and, on the other hand, at least one of the five reasons for persecution that may give rise to the recognition as a refugee. The Court emphasised that refusal to perform military service will often be a reflection of a person’s expression of political opinions, religious belief or membership of a particular social group, thus giving rise to a strong presumption of the connection. The CJEU also stated that it cannot be found that it is for the applicant for international protection to prove this connection.
 
In conclusion, the CJEU stated that Article 9(2)(e) in conjunction with Article 9(3) of the Qualification Directive must be interpreted as meaning that the existence of a connection between the 5 grounds for refugee recognition and the prosecution and punishment for refusal to perform the military service referred to in Article 9(2)(e) cannot be regarded as established solely because that prosecution and punishment are connected to that refusal. However, it emphasised there is a strong presumption that refusal to perform military service under the conditions set out in Article 9(2)(e) relates to one of these five reasons.

Photo: Transparency International, March 2013, Flickr (CC)

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