'Trial by Mathematics' and the EU’s Subsidiary Protection Regime – A 'Strategic' Preliminary Reference Pending Before the CJEU in Case C-901/19
European Law Blog, 2021, https://europeanlawblog.eu/2021/03/05/trial-by-mathematics-and-the-eus-subsidiary-protection-regime-a-strategic-preliminary-reference-pending-before-the-cjeu-in-case-c%e2%80%91901-19/
Posted: 23 Apr 2021
Date Written: March 5, 2021
Subsidiary protection from the violence of armed conflict under the EU’s Qualification Directive (QD) has gained considerable importance in national asylum systems (I.). Based on a 2011 judgment of the German Federal Administrative Court (FAC), national courts in Germany have regularly denied such subsidiary protection after an entirely quantitative assessment because they calculated the risk to be killed or injured in the country of origin to be lower than 0.125% (II.).
In 2019, the Higher Administrative Court of Mannheim made a preliminary reference to the CJEU directed against this FAC jurisprudence (Case C‑901/19), which is currently pending before the Court of Justice. In a surprising response to the preliminary reference, the FAC issued a judgment in May 2020, in which it sought to clarify that its jurisprudence had actually never established a “quantitative minimum threshold” for the determination of subsidiary protection. This clarification, which arguably overrules the 2011 judgment, is remarkable as lower courts and legal commentators had for years unanimously seen precisely such a threshold in the FAC’s case law. The Mannheim court’s reference and the FAC’s answer could be considered “strategic” and are therefore relevant not only for the EU asylum system but also, more generally, for the structure of the preliminary reference mechanism before the Court of Justice (III.).
The German Government seems to have argued that the reference made by the Mannheim court is now moot because of the FAC’s clarification. But an interpretation of EU law by the CJEU in response to the reference remains highly necessary. The Advocate General in his Opinion of 11 February 2021 has already affirmed that the reference continues to be relevant. But there is another reason why the Court of Justice should rule on this reference: German courts could and do largely continue this practice even after the FAC’s clarification (IV.). Owing to this uncertainty in the German case law, and to rule out any misunderstandings, the Court of Justice should rule that any determination of subsidiary protection status that solely relies on quantitative factors is incompatible with the Qualification Directive (V.).
Keywords: Subsidiary Protection, Qualification Directive, Preliminary Reference, Armed Conflict, Refugees, Migration, European Union, Germany, Afghanistan
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