delivered on 8 June 2023 (1)

Case C‑125/22

X,

Y,

their six minor children

Staatssecretaris van Justitie en Veiligheid

(Request for a preliminary ruling from the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court, The Hague, sitting in ’s‑Hertogenbosch, Netherlands))

(Reference for a preliminary ruling – Common policy on asylum and subsidiary protection – Directive 2011/95/EU – Conditions for the granting of subsidiary protection – Article 15 – Taking into account factors particular to the applicant’s individual position and personal circumstances and to the general situation in the country of origin – Humanitarian situation)

1.This request for a preliminary ruling under Article 267 TFEU from the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court, The Hague, sitting in ’s‑Hertogenbosch, Netherlands) concerns the interpretation of Article 15 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted. (2)

2.The request has been made in proceedings between, on the one hand, the married couple X and Y and their six minor children, who are all Libyan nationals (together, ‘the applicants’), and, on the other hand, the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands; ‘the State Secretary’), concerning the latter’s decisions to reject the applicants’ applications for international protection. The issue at the heart of this dispute is whether the applicants are eligible for subsidiary protection within the meaning of Directive 2011/95.

3.The referring court asks, in essence, for clarification as to how the individual position and personal circumstances of an applicant, on the one hand, and the general situation in the country of origin, on the other, must be taken into account when examining the application in the light of Article 15 of Directive 2011/95. The referring court also seeks to ascertain whether, under certain conditions, a humanitarian situation must also be taken into account in assessing the right to subsidiary protection. By its judgment, which will interpret the common criteria that applicants for international protection must fulfil in order to be eligible for subsidiary protection, the Court will contribute to legal certainty and greater consistency in the application of the rules governing the common European asylum system.

II. Legal framework

1. The Charter of Fundamental Rights of the European Union

4.Article 1 of the Charter of Fundamental Rights of the European Union (‘the Charter’), entitled ‘Human dignity’, provides:

‘Human dignity is inviolable. It must be respected and protected.’

5.Article 4 of the Charter, entitled ‘Prohibition of torture and inhuman or degrading treatment or punishment’, provides:

‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

6.Article 19 of the Charter, entitled ‘Protection in the event of removal, expulsion or extradition’, provides in paragraph 2:

‘No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.’

7.Article 2 of Directive 2011/95, entitled ‘Definitions’, provides:

‘For the purposes of this Directive the following definitions shall apply:

(a)“international protection” means refugee status and subsidiary protection status as defined in points (e) and (g);

(b)“beneficiary of international protection” means a person who has been granted refugee status or subsidiary protection status as defined in points (e) and (g);

…

(f)“person eligible for subsidiary protection” means a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) does not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country;

(g)“subsidiary protection status” means the recognition by a Member State of a third-country national or a stateless person as a person eligible for subsidiary protection;

“application for international protection” means a request made by a third-country national or a stateless person for protection from a Member State, who can be understood to seek refugee status or subsidiary protection status, and who does not explicitly request another kind of protection, outside the scope of this Directive, that can be applied for separately;

(i)“applicant” means a third-country national or a stateless person who has made an application for international protection in respect of which a final decision has not yet been taken;

…’

8.Article 4 of that directive, entitled ‘Assessment of facts and circumstances’, which appears in Chapter II of that directive, concerning the ‘assessment of applications for international protection’, provides:

1. Member States may consider it the duty of the applicant to submit as soon as possible all the elements needed to substantiate the application for international protection. In cooperation with the applicant, it is the duty of the Member State to assess the relevant elements of the application.

…

(a)all relevant facts as they relate to the country of origin at the time of taking a decision on the application …;

(b)the relevant statements and documentation presented by the applicant including information on whether the applicant has been or may be subject to persecution or serious harm;

(c)the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant’s personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm;

…

4. The fact that an applicant has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, is a serious indication of the applicant’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.

5. Where Member States apply the principle according to which it is the duty of the applicant to substantiate the application for international protection and where aspects of the applicant’s statements are not supported by documentary or other evidence, those aspects shall not need confirmation when the following conditions are met:

(a)the applicant has made a genuine effort to substantiate his application;

(b)all relevant elements at the applicant’s disposal have been submitted, and a satisfactory explanation has been given regarding any lack of other relevant elements;

(c)the applicant’s statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the applicant’s case;

…

(e)the general credibility of the applicant has been established.’

According to Article 6 of that directive, entitled ‘Actors of persecution or serious harm’:

Actors of persecution or serious harm include:

(a)the State;

(b)parties or organisations controlling the State or a substantial part of the territory of the State;

(c)non-State actors, if it can be demonstrated that the actors mentioned in points (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7.’

Article 8 of that same directive, entitled ‘Internal protection’, provides in paragraph 2:

‘In examining whether an applicant has a well-founded fear of being persecuted or is at real risk of suffering serious harm, or has access to protection against persecution or serious harm in a part of the country of origin in accordance with paragraph 1, Member States shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant in accordance with Article 4. To that end, Member States shall ensure that precise and up-to-date information is obtained from relevant sources, such as the United Nations High Commissioner for Refugees and the European Asylum Support Office.’

According to Article 15 of Directive 2011/95, entitled ‘Serious harm’, which appears in Chapter V of that directive, concerning ‘qualification for subsidiary protection’:

Serious harm consists of:

(a)the death penalty or execution; or

(b)torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or

(c)serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.’

Article 18 of that directive, entitled ‘Granting of subsidiary protection status’, provides:

‘Member States shall grant subsidiary protection status to a third-country national or a stateless person eligible for subsidiary protection in accordance with Chapters II and V.’

B.

Netherlands law

Article 29(1) of the Wet tot algehele herziening van de Vreemdelingenwet (Vreemdelingenwet 2000) (Law providing for a comprehensive review of the Law on foreign nationals (Law on foreign nationals of 2000)) of 23 November 2000 (Stb. 2000, No 496), in the version applicable to the dispute in the main proceedings, provides:

‘1. A fixed-term residence permit … may be issued to a foreign national who:

(a)has refugee status; or

(b)proves to the requisite standard that he or she has good grounds for believing that, if expelled, he or she will run a real risk of suffering serious harm, which comprises:

1°.the death penalty or execution;

2°.torture, inhuman or degrading treatment or punishment; or

3°.serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

…

4. A fixed-term residence permit … may also be granted to a family member within the meaning of paragraph 2 who has simply not joined the foreign national referred to in paragraph 1 within three months of that national being granted a residence permit …, if, within that three-month period, an application for a visa for a stay of more than three months has been made by or on behalf of that family member.’

III.

The facts giving rise to the dispute, the main proceedings and the questions referred for a preliminary ruling

The married couple X and Y, the applicants in the main proceedings, are from Libya. On 28 January 2018, they submitted applications for international protection in the Netherlands, on their own behalf and on behalf of their six minor children.

They made the following statements in support of their applications. X worked for several years in Tripoli as a bodyguard for high-ranking politicians. On one occasion, he was shot while jogging after work. He was hit in the head and has a bullet fragment in his left cheek. After this, X was threatened twice by telephone, once approximately five months after he was shot and a second time one to two years after he was shot at. During those telephone conversations, it was stated, inter alia, that X was working for the government, that he was going to be killed and that his children would be kidnapped. X had suspicions as to the identity of who was responsible for the shooting and the threats, but could not prove those suspicions. Moreover, the applicants argued that, in addition to the humanitarian situation in Libya (in particular the lack of access to drinking water and electricity), the fact that they have six minor children is also relevant to the assessment under Article 15(c) of Directive 2011/95.

In separate decisions, all dated 24 December 2020, the State Secretary dismissed the applications for international protection as unfounded. The decisions further state that the applicants would not be granted an ordinary residence permit and that no postponement of their obligation to depart would be granted. Finally, the State Secretary decided that those decisions would also serve as an obligation to leave the territory and that the applicants had a period of four weeks to comply.

The applicants lodged an appeal against the rejection of their applications for international protection before the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court, The Hague, sitting in ’s‑Hertogenbosch), on the ground that it was unfounded.

That court expresses doubts concerning the interpretation of Article 15 of Directive 2011/95. It asks whether the provisions of Article 15(b), on the one hand, and those of Article 15(c), on the other hand, must be assessed in a strictly separate manner or whether, by contrast, Article 15 must be interpreted as meaning that all relevant factors relating both to the individual position and personal circumstances of the applicant and to the general situation in the country of origin must always be assessed as an integrated whole and having regard to their mutual interdependence before determining what manifestation of serious harm may be substantiated by those factors. It argues that the decision whether or not to grant protection to the applicants in the main proceedings depends on how those provisions should be interpreted.

That is why the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court, The Hague, sitting in ’s‑Hertogenbosch) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must Article 15 of [Directive 2011/95], read in conjunction with Article 2(g) and Article 4 of that directive and Article 4 … and Article 19(2) of the [Charter], be interpreted as meaning that, in considering whether an applicant is in need of subsidiary protection, all relevant factors relating both to the applicant’s individual situation and personal circumstances, and to the general situation in the country of origin, must always be examined and assessed as an integrated whole and having regard to their mutual interdependence before determining what feared manifestation of serious harm may be substantiated by those factors?','prefix':'(1)','indentation':1,

(2)In the event that the Court of Justice answers the first question in the negative, is the evaluation of the applicant’s individual situation and personal circumstances in the context of the assessment of Article 15(c) of [Directive 2011/95], which the Court has already clarified must be taken into account, more comprehensive than the assessment of the individualisation requirement referred to in the judgment of the European Court of Human Rights [of 17 July 2008] in NA v the United Kingdom [(CE:ECHR:2008:0717JUD002590407) (3)]? Can those factors, in the case of the same application for subsidiary protection, be taken into account when assessing both Article 15(b) of [Directive 2011/95] and Article 15(c) of [that directive]?

(3)Must Article 15 of [Directive 2011/95] be interpreted as meaning that, when assessing the need for subsidiary protection, the so-called sliding scale, which the Court of Justice has already clarified must be applied when assessing an alleged fear of serious harm as referred to in Article 15(c) of [that directive], must also be applied when assessing an alleged fear of serious harm as referred to in Article 15(b) of [that directive]?

(4)Must Article 15 of [Directive 2011/95], read in conjunction with Article 1 …, Article 4 … and Article 19(2) of the [Charter], be interpreted as meaning that humanitarian circumstances, which are a direct or an indirect consequence of acts and/or omissions of an actor of serious harm, must be taken into account when assessing whether an applicant is in need of subsidiary protection?’

20.The order for reference dated 22 February 2022 was received at the Registry of the Court on that day.

21.The applicants in the main proceedings, the Netherlands, Belgian, German and French Governments and the European Commission submitted written observations within the period prescribed by Article 23 of the Statute of the Court of Justice of the European Union.

22.At the hearing on 23 March 2023, oral argument was presented by the legal representatives of the applicants in the main proceedings, the Netherlands Government and the Commission.

The Geneva Convention of 28 July 1951 and its Protocol of 31 January 1967 relating to the status of refugees (4) are the main international legal instruments in the field of international protection, in particular as regards the status of refugees and the principle of non-refoulement. With the adoption of Directive 2011/95, a new form of protection, ‘subsidiary protection’, was introduced in the European Union. Having been adopted by the EU legislature on the basis of, inter alia, Article 78(2)(b) TFEU, that directive was adopted as part of the measures for a common European asylum system comprising ‘a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection’ (emphasis added).

‘Person eligible for subsidiary protection’, within the meaning of Article 2(f) of Directive 2011/95, means ‘a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15’ (emphasis added). That provision provides for three types of ‘serious harm’ which, when substantiated, entitle the person subject to those types of harm to the grant of subsidiary protection. These are, specifically, the death penalty (point (a)); torture or inhuman or degrading treatment or punishment of an applicant in the country of origin (point (b)), and serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict (point (c)).

Accordingly, Directive 2011/95 introduces common criteria on the basis of which applicants for international protection are to be recognised as eligible for subsidiary protection, thereby ensuring that all Member States apply those criteria. As the Court has rightly noted, that directive seeks to establish a uniform system of subsidiary protection. (5) It is for the national authorities to assess the facts and establish whether those criteria are satisfied in the present case, while following the guidelines set out in the case-law. In so far as the referring court expresses doubts as to the interpretation of Article 15 of that directive and deplores divergent practices in the application of those criteria, it seems to me essential that the Court should give a clear ruling on the questions raised in order to ensure a consistent application of the rules of the common European asylum system.

The referring court essentially asks the Court for clarification as to how the individual position and personal circumstances of an applicant, on the one hand, and the general situation in the country of origin, on the other hand, are to be taken into account in the context of the analysis of whether to grant that applicant subsidiary protection under Article 15 of Directive 2011/95 (first to third questions). The referring court also seeks to ascertain whether, under certain conditions, a humanitarian situation must also be taken into account in assessing the applicant’s right to subsidiary protection (fourth question). Those questions will be dealt with in the order in which they were raised.

B. The first question referred

27.By its first question, the referring court asks whether Article 15 of Directive 2011/95, read in conjunction with Article 2(g) and Article 4 of that directive and Article 4 and Article 19(2) of the Charter, must be interpreted as meaning that, in order to determine whether an applicant is exposed to the risk of suffering one of the serious harms referred to in Article 15 of that directive, it is for the competent authorities systematically to examine all relevant factors, relating both to the ‘individual position’ and ‘personal circumstances’ of the applicant and to the ‘general situation’ in the country of origin, before determining what form of serious harm may be substantiated by those factors.

1. The obligation to carry out an individual assessment of the application for international protection which takes into account all relevant aspects relating to the country of origin, and to the individual position and personal circumstances of the applicant

28.At the outset, it should be recalled that, as is apparent from Article 10(3) of Directive 2013/32/EU, (6) it is for the determining authority of the Member State concerned to decide on an application for international protection after an appropriate examination, as provided for inter alia in that paragraph. The examination of the application by the determining authority, which must have specific resources and staff specialised in the matter, is a vital stage of the common procedures established by that directive. (7)

Next, it should be noted that, according to Article 4(3) of Directive 2011/95, the assessment of an application for international protection must be carried out on an ‘individual’ basis, taking into account, inter alia, the elements referred to in that article. (8) Point (a) refers to ‘all relevant facts as they relate to the country of origin’, while point (c) refers to the ‘individual position’ and ‘personal circumstances’ of the applicant. That provision also applies to the assessment of whether an applicant must be granted subsidiary protection status when he or she cannot be regarded as a refugee. In other words, even if an application for international protection does not rely on factors particular to the applicant’s circumstances, that provision requires the ‘individual position’ as well as the ‘personal circumstances’ of the applicant to be taken into account.

Moreover, it should be noted that, contrary to what the French Government argues, there is no hierarchical or chronological order between the different types of serious harm defined in Article 15 of Directive 2011/95, (9) with the result that no argument can be derived therefrom to claim a lack of relevance of the ‘individual position’ and ‘personal circumstances’ of the applicant (in relation to the situation in the country of origin) as a factor to be taken into account for the purposes of assessing his or her application for international protection in the light of Article 15(c) of that directive. On the contrary, that consideration seems to support an interpretation which specifically requires that those elements be taken into account in the assessment to be made by the competent authority.

It therefore seems to me to follow from the abovementioned provisions that, in assessing whether, in the event of return to the country of origin, the applicant would face a real risk of serious harm within the meaning of Article 15 of that directive, it is always necessary to take into account both the ‘individual position’ and ‘personal circumstances’ of the applicant and all the relevant facts concerning the country of origin and consequently also, where appropriate, the ‘general situation in the country’ in question.

That said, it is important to state that that observation does not imply that the meaning to be given to the two elements referred to above (on the one hand, the individual position and personal circumstances of the applicant and, on the other hand, the general situation in the country of origin) is necessarily the same in the context of an assessment under Article 15(a), (b) and (c) of Directive 2011/95. In its case-law, the Court has drawn attention to the fact that there are differences between those points which it is appropriate briefly to refer to in the interests of a better understanding of the analysis.

On the one hand, as regards the grounds set out in Article 15(a), namely the ‘death penalty or execution’, and in Article 15(b), namely the risk of ‘torture or inhuman treatment’, such serious harm covers situations in which the applicant for subsidiary protection is specifically exposed to the risk of a particular type of harm. (10) On the other hand, the harm defined in Article 15(c) of that directive, consisting of a ‘serious and individual threat to [the applicant’s] life or person’ covers a more general risk of harm. Reference is thus made, more generally, to a ‘threat to a civilian’s life or person’ rather than to specific acts of violence. Furthermore, that threat is inherent in a general situation of armed conflict, giving rise to ‘indiscriminate violence’, which implies that it may extend to people irrespective of their personal circumstances. (11)

However, those differences do not preclude the existence of overlaps, with the result that, in certain cases, manifestations of serious harm may simultaneously fulfil several criteria to be assessed when evaluating the same application for international protection. (12) For that reason, I consider that all relevant factors relating both to the individual position and personal circumstances of the applicant and to the general situation in the country of origin must be examined and assessed having regard to their mutual interdependence before establishing the manifestation of serious harm which best corresponds to the instant case under Article 15(a), (b) or (c) of Directive 2011/95.

Moreover, I would like to recall that, as the Court has held, the reference to ‘serious and individual threat’ (emphasis added), in Article 15(c) of that directive, must be understood as covering harm to civilians irrespective of their identity, where the degree of indiscriminate violence characterising the armed conflict taking place – assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred – reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his or her presence on its territory, face a real risk of being subject to the serious threat referred in Article 15(c) of that directive. (13)

However, while it is true that Article 15(c) of Directive 2011/95 may cover an exceptional situation such as the one described in the preceding point, the Court has stated that that provision may also cover other situations characterised by a lower level of indiscriminate violence but in which such a risk derives from the applicant’s personal circumstances. As the Court has established in its case-law, for the purposes of applying Article 15(c) of that directive, ‘the more the applicant is able to show that he [or she] is specifically affected by reason of factors particular to his [or her] personal circumstances, the lower the level of indiscriminate violence required for him [or her] to be eligible for subsidiary protection’ (emphasis added). (14)

All those factors lead to the conclusion that, in the context of the analysis of whether to grant the applicant subsidiary protection within the meaning of Article 15(c) of Directive 2011/95, it is necessary to take into account not only the ‘general situation’ in the country of origin, but also, where appropriate, factors relating to the ‘individual position’ and the ‘personal circumstances’ of that applicant.

Finally, it should be noted that, since neither Directive 2011/95 nor Directive 2013/32, nor indeed any other rule of EU law, contain express and detailed rules relating to the structure and organisation of the assessment process as regards the interdependence and sequence of the assessment of the various forms of serious harm within the meaning of Article 15 of Directive 2011/95, Member States have, in principle, a certain margin of appreciation in that regard.

In my view, the considerations set out above, based on an interpretation of the relevant provisions, while taking into account the case-law of the Court, nevertheless make it possible to establish a series of principles which may limit the margin of appreciation available to the Member States. In so far as those principles may serve as guidance for the national authorities in the performance of their functions, I consider it appropriate to present them below.

First, it is clear from Article 15 of Directive 2011/95 that the EU legislature intentionally distinguished between the various forms of serious harm which may exist. Each of the three forms of serious harm referred to in that article constitutes an autonomous ground for granting subsidiary protection status. Therefore, all the requirements deriving from the relevant point of Article 15 must be fulfilled before subsidiary protection status can be granted. It is therefore not sufficient to satisfy in part the requirements of one point and in part those of another point of Article 15. The fact remains that, where appropriate, there may simultaneously exist a real risk of several serious harms for the purposes of that article.

Secondly, and without prejudice to the foregoing, in a situation in which several forms of serious harm within the meaning of Article 15 of Directive 2011/95 may be at issue, certain elements may be simultaneously relevant to more than one form of such serious harm. In that case, the relevant elements in question must be taken into account in assessing all the forms of serious harm which may be at issue. As I have explained in point 29 of this Opinion, Article 4(3) of Directive 2011/95 requires that account always be taken of ‘all relevant facts’ referred to therein, including the individual position and personal circumstances of the applicant, as well as the general situation in the country of origin. In accordance with that requirement, it cannot be accepted that, in a Member State, certain potentially relevant factors are not examined and assessed by the determining authority solely on the formal ground that the applicant has put forward those factors in the light of one of the potentially relevant forms of feared serious harm, but not the other.

Thirdly, it follows from the Court’s case-law that a distinction must be drawn between the two stages in the assessment of an application for international protection. (15) The first stage concerns the establishment of factual circumstances which may constitute evidence that supports the application, while the second stage relates to the legal appraisal of that evidence, which entails deciding whether, in the light of the specific facts of a given case, the substantive conditions for the grant of international protection are met. The requirement for cooperation provided for in Article 4(1) of Directive 2011/95 applies during the first stage but not during the second. That distinction between the two stages of the assessment, with different responsibilities for the applicant and the determining authority, confirms that it is not possible for the determining authority, in anticipation of the possible legal classification, to exclude certain potentially relevant factors. That approach would run counter to the principle that there are two distinct stages which should logically be applied in succession.

Fourthly, a particularly important aspect to be taken into account in the assessment of an application for international protection in the light of Article 15 of Directive 2011/95 – which will be explained in detail in the context of the examination of the second question referred – concerns the question of the extent to which the applicant is specifically exposed to the risk of suffering a certain type of harm. As the Court has held, that ‘individualisation’ is important for determining whether the applicant’s situation falls within the scope of not only the serious harms defined in points (a) and (b), but also the serious harms referred to in point (c). In accordance with the ‘sliding scale’, developed in the case-law, which is relevant to point (c), ‘the more the applicant is able to show that he [or she] is specifically affected by reason of factors particular to his [or her] personal circumstances, the lower the level of indiscriminate violence required for him [or her] to be eligible for subsidiary protection’ (emphasis added). Accordingly, the competent authority will have to establish the level of ‘individualisation’ required in the present case.

In accordance with the division of powers in the context of a preliminary ruling procedure under Article 267 TFEU, it is for the referring court to ascertain whether the approach adopted in the present case by the competent authority when examining the application for international protection of the applicants in the main proceedings fulfils the requirements of EU law set out above.

4. Answer to the first question referred

In the light of the foregoing considerations, I propose that the answer to the first question should be that Article 15 of Directive 2011/95, read in conjunction with Article 4(3) thereof, must be interpreted as meaning that, for each of the points listed in that article, which may be relevant in a particular case, the assessment of the application for international protection must take into account, inter alia, all the elements listed in Article 4(3), including the individual position and personal circumstances of the applicant, together with all relevant facts relating to the country of origin, and must be carried out in a manner which distinguishes between the two stages relating, respectively, to the identification of the factual circumstances which may constitute evidence in support of the application and to the legal assessment of that evidence, without it being necessary to assess the various points of Article 15 as a whole.

1. The relevance of the case-law of the European Court of Human Rights on Article 3 ECHR

By its second question, the referring court asks, in essence, whether Article 15(c) of Directive 2011/95 must be interpreted as meaning that, in the context of the analysis of whether there is a risk of serious harm within the meaning of that provision, factors relating to the individual position and personal circumstances of that applicant must be assessed, and whether that assessment is more comprehensive than the assessment of the ‘individualisation’ requirement referred to in the judgment of the European Court of Human Rights in NA. v. the United Kingdom.

In particular, it is apparent from the order for reference that the national court seeks guidance, inter alia, on whether individual circumstances other than the mere fact of coming from an area in which ‘the most extreme cases of general violence’ occur, within the meaning of that judgment – that is to say where the degree of violence in a given country reaches such a level that the deportation of a person to that country constitutes a violation of the prohibition of torture and inhuman or degrading treatment guaranteed by Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’) – can serve as a relevant element which is necessary for substantiating a fear of serious harm within the meaning of Article 15(c) of Directive 2011/95.

In that regard, it should be recalled that the Court has held that Article 15(c) of Directive 2011/95 is capable of covering not only situations characterised by a level of indiscriminate violence, but also other situations characterised by a lower level of violence, in which such a risk arises from factors relating to the applicant’s personal circumstances. As I noted when examining the first question, (17) the Court has stated in its case-law that ‘the more the applicant is able to show that he [or she] is specifically affected by reason of factors particular to his [or her] personal circumstances, the lower the level of indiscriminate violence required for him [or her] to be eligible for subsidiary protection’ (emphasis added). It follows that, in carrying out the analysis required under that provision, a ‘sliding scale’ based on a distinction according to the possible levels of indiscriminate violence and individual circumstances of the applicant can be applied in assessing whether the applicant is eligible for subsidiary protection under that provision.

As regards the question whether the assessment of factors relating to the individual position and personal circumstances of the applicant, carried out in the context of the analysis of whether there is a risk of serious harm within the meaning of Article 15(c) of Directive 2011/95, is more comprehensive than the assessment of the ‘individualisation’ requirement referred to by the European Court of Human Rights in the judgment in NA. v. the United Kingdom, it should be recalled that in the judgment of 17 February 2009, Elgafaji (C‑465/07, EU:C:2009:94), the Court of Justice held that Article 15(b) of Directive 2011/95 corresponds, in essence, to Article 3 ECHR. However, in so far as Article 15(c) of that directive differs from that provision of the ECHR, its interpretation must be carried out independently, although with due regard for fundamental rights, as they are guaranteed under the ECHR. (18) The Court added, with reference to the abovementioned judgment in NA. v. the United Kingdom, that the interpretation given there to Article 15(c) of Directive 2011/95, in conjunction with Article 2(e) thereof, is fully compatible with the ECHR, including the case-law of the European Court of Human Rights relating to Article 3 ECHR. (19)

With the entry into force of the Treaty of Lisbon, the Charter became legally binding and has the same legal status as the Treaties, as provided for in Article 6(1) TEU. The Charter is therefore now the main point of reference for the protection of fundamental rights in the EU legal order. This is precisely what is stated in recital 16 of Directive 2011/95. However, it is important to note that the fundamental rights guaranteed by the ECHR – and therefore by the case-law of the European Court of Human Rights in that regard – remain as important as ever in the EU legal order. Indeed, Article 52(3) of the Charter provides that, the rights contained in the Charter which correspond to rights guaranteed by the ECHR have the same meaning and scope as the corresponding rights laid down by the ECHR.

With particular reference to Article 3 ECHR, the fundamental right contained therein corresponds to the fundamental right enshrined in Article 4 of the Charter. As such, as I stated in my Opinion in Bundesrepublik Deutschland (Concept of ‘serious and individual threat’), the latter provision therefore has the same meaning and scope as the former. (20) Accordingly, the case-law of the European Court of Human Rights, in particular concerning Article 3 ECHR, of which the judgment in NA. v. the United Kingdom forms part, may therefore be relevant for the interpretation of the provisions of Directive 2011/95.

That said, it is important to point out that, since the interpretation of Article 15(c) of Directive 2011/95 must be carried out independently, as the Court has stated, the assessment of personal circumstances under that provision is not limited to the assessment of the ‘individualisation requirement’ referred to by the European Court of Human Rights in the judgment cited above. Consequently, it seems to me that the assessment of personal circumstances under Article 15(c) of Directive 2011/95 is more comprehensive than the assessment of that ‘individualisation’ requirement.

As I have already stated in my Opinion in Bundesrepublik Deutschland (Concept of ‘serious and individual threat’), (21) it is clear from the case-law of the Court that, while the application of Article 15(c) of Directive 2011/95 does not initially entail an examination of the personal circumstances of the applicant, that provision must then be read in conjunction with Article 4(4) of that directive, so that matters of a personal nature concerning that applicant may, where relevant, be taken into account in determining whether there is a serious and individual threat within the meaning of Article 15(c) thereof. (22)

54.According to Article 4(4) of Directive 2011/95, ‘the fact that an applicant has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, is a serious indication of the applicant’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated’ (emphasis added). Therefore, it cannot be excluded that the identification of a possible ‘serious and individual threat’, within the meaning of Article 15(c) of Directive 2011/95, may be based on factors identical to those taken into account in the context of identifying acts of ‘torture or inhuman or degrading treatment or punishment’ to which an applicant must establish that he or she is specifically exposed for the purposes of Article 15(b).

55.Moreover, I admit that I have some sympathy for the interpretation put forward by the German Government, according to which it is also necessary to take into account certain factors related to the individual position or personal circumstances of the applicant that may increase his or her risk of becoming a victim of violence in the event of internal or international armed conflict. (23) Those factors include occupation, where, for example, a doctor, lawyer or interpreter is exposed to specific risks as a result of his or her activity. While it is impossible to list exhaustively all the factors which may increase a person’s risk of becoming a victim of violence, I consider that the approach to be adopted is sufficiently clear to serve as guidance for competent authorities.

For the reasons set out above, I consider that the answer to the second question should be that Article 15 of Directive 2011/95, read in conjunction with Article 4(3) and (4) of that directive, must be interpreted as meaning that the individual position and personal circumstances of the applicant, including his or her occupation, must be taken into account in the assessment under Article 15(c) of that directive, in so far as those factors increase the specific risk of his or her being exposed to a serious and individual threat to life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

By its third question, the referring court seeks, in essence, to ascertain whether Article 15(b) of Directive 2011/95 must be interpreted as meaning that the abovementioned ‘sliding scale’, which is applied in the assessment under Article 15(c) of that directive, is also to be applied in the assessment under Article 15(b) of that directive.

58.In that regard, it should be noted that that ‘sliding scale’ concerns the level of indiscriminate violence in the context of an internal or international armed conflict and makes it possible to determine whether, in a particular case, the level of such indiscriminate violence, which may result in a serious and individual threat to a civilian’s life or person, is such that substantial grounds have been shown for believing that, in the event of return to the country of origin, the person concerned would face a real risk of suffering serious harm as referred to in Article 2(f) of Directive 2011/95, read in conjunction with Article 15(c) of that directive.

59.By contrast, the serious harms listed in Article 15(a) and (b) of that directive cover different situations, in which the applicant is specifically exposed to a risk of harm requiring a certain degree of individualisation, based on factors particular to his or her personal circumstances.

60.In view of the fact that Article 15(b) does not contain a requirement relating to a situation in which a certain level of indiscriminate violence is involved, I consider that that ‘sliding scale’ is irrelevant for the purposes of the assessment under Article 15(b).

61.For those reasons, the answer to the third question should be that Article 15(b) of Directive 2011/95 must be interpreted as meaning that the ‘sliding scale’ which, according to the case-law of the Court, is applied for the purposes of the assessment under Article 15(c) does not apply to that first provision.

By its fourth question, the referring court asks, in essence, whether, in the context of the analysis of whether to grant the applicant the protection provided for in Article 15(c) of Directive 2011/95, it is possible to take account of an urgent humanitarian situation arising in the country of origin.

According to settled case-law, the procedure laid down in Article 267 TFEU is an instrument for cooperation between the Court of Justice and the national courts, by means of which the former provides the latter with the points of interpretation of EU law necessary in order for them to decide the disputes before them. (24) In the context of that cooperation, the national court seised of the dispute is in the best position to assess, having regard to the particular features of the case, whether a preliminary ruling is necessary to enable it to give judgment and the relevance of the questions which it refers to the Court. That does not alter the fact that it is for the Court, where appropriate, to examine the circumstances in which the case was referred to it by a national court in order to assess whether it has jurisdiction and, in particular, determine whether the interpretation of EU law that is sought bears any relation to the facts of the main action or its purpose, so that the Court is not led to deliver advisory opinions on general or hypothetical questions. If it appears that the question raised is manifestly irrelevant for the purposes of deciding the case, the Court must declare that there is no need to proceed to judgment. (25) As I shall explain below, the examination of the fourth question raises insurmountable difficulties which, in my view, preclude the admissibility of that question, notwithstanding a careful and sympathetic reading of the order for reference.

64.First, the referring court does not expressly indicate to which point of Article 15 of Directive 2011/95 this question relates. However, it is apparent from the context in which the question was raised that it concerns the interpretation to be given to point (c) of that article. Moreover, the referring court fails to explain what is meant by the reference to the ‘humanitarian situation’. Nevertheless, it is possible to infer from the explanations provided in the order for reference that the referring court is referring to situations characterised by a critical shortage of basic services such as food, water or medical care, with the result that there clearly exists an ‘urgent humanitarian situation’. That said, even assuming that the referring court had such circumstances in mind, it must be noted that it is not apparent from the order for reference that the applicants are actually in the situation described. A mere general reference to reports prepared by international organisations on the overall situation in the country of origin is no substitute for a case-by-case assessment of the applicant’s situation.

Indeed, although the applicants stated that ‘difficult living conditions, such as the unavailability of fuel, drinking water and electricity, were one of the reasons for [their] departure’, the fact remains that Directive 2011/95 imposes strict requirements relating to the risk of suffering serious harm. (26) As the Court has repeatedly pointed out, that directive imposes an obligation on Member States to identify ‘persons genuinely in need of international protection’ (emphasis added). (27) It is in that spirit that the Court held, with regard to the risks faced by a third country national of a deterioration in his state of health, that ‘general shortcomings in the health system of the country of origin’ do not fall within the scope of Article 15(c) of that directive. (28) Similarly, the Court has held that the objective finding alone of a ‘risk linked to the general situation in a country’ is not, as a rule, sufficient to establish that the conditions set out in that provision have been met in respect of a specific person. (29)

That interpretation is supported by recital 35 of that directive, from which it is apparent that ‘risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm’ (emphasis added). It follows from the foregoing that a situation such as that described by the applicants cannot be regarded as falling within one of the scenarios referred to by Article 15(c) of Directive 2011/95, however difficult the circumstances may be for the persons concerned. For those reasons, the link between the question raised by the referring court and the facts giving rise to the case seems questionable, to say the least. The fourth question therefore seems to me to be hypothetical in nature.

Secondly, it should be noted that it is not apparent from the order for reference that the humanitarian situation at issue in the main proceedings is a direct or an indirect consequence of acts and/or omissions of an actor of serious harm, as is presupposed by the question referred. The order for reference fails to specify who the actor in question is, the nature of that actor’s specific acts and/or omissions, whether those acts and/or omissions were deliberate or unintentional, or the precise relationship between the humanitarian situation and those acts and/or omissions. In that context, it should be recalled that, according to the case-law of the Court, subsidiary protection can be granted only if the threats are the consequence of intentional conduct on the part of one of the actors referred to in Article 6 of Directive 2011/95. According to the Court, the fact that that provision sets out a list of those deemed responsible for inflicting serious harm ‘supports the view that such harm must take the form of conduct on the part of a third party’ (emphasis added).

In the context of Article 15(c) of that directive, this implies that subsidiary protection may be granted where the serious and individual threat is a sufficiently direct consequence of indiscriminate violence. In the present case, in the absence of the necessary information on the specific situation of the applicants, in particular as regards the precise identity of the actors allegedly involved, it is not possible to answer the question raised, other than being guided by hypothetical considerations, which is precluded by the case-law referred to in point 63 of this Opinion.

Thirdly, I cannot avoid the impression that the reference for a preliminary ruling is in fact intended to invite the Court to incorporate additional requirements into Article 15(c) of Directive 2011/95, despite the clear and exhaustive wording of that provision. It is indisputable that that provision makes no reference to an ‘urgent humanitarian situation’ as such as one of the situations which may give rise to entitlement to subsidiary protection. First, the wording of that provision already precludes an interpretation which might encompass such a situation. I therefore consider that an ‘urgent humanitarian situation’ does not fall within the scope of that provision.

Moreover, it seems to me that such an interpretation, if it were to be contemplated by the Court, would not only be problematic on account of the arguments set out above, but would also give rise to difficulties of application for the national authorities, particularly since it would not be clear how any additional requirements – to be incorporated by way of a judicial decision – would be integrated into Article 15(c) of Directive 2011/95. In particular, the relationship between the ‘urgent humanitarian situation’ and the requirements expressly referred to in that provision would raise many questions. The difficulties associated with such an approach seem to me to demonstrate that the intention of the EU legislature cannot have been to accept such an extension of the scope of the abovementioned provision without providing for reform. In my view, it is for the EU legislature alone to ensure legal certainty by amending Directive 2011/95 if necessary.

For the reasons set out in the preceding points, I propose that the Court declare the fourth question inadmissible.

In the light of all the foregoing considerations, I propose that the Court answer the questions referred by the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court, The Hague, sitting in ’s‑Hertogenbosch, Netherlands) for a preliminary ruling as follows:

(1) Article 15 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, read in conjunction with Article 4(3) of that directive, must be interpreted as meaning that for each of the points listed in that article, which may be relevant in a particular case, the assessment of the application for international protection must take into account, inter alia, all the elements listed in Article 4(3) of that directive, including the individual position and personal circumstances of the applicant, together with all relevant facts relating to the country of origin, and must be carried out in a manner which distinguishes between the two stages relating, respectively, to the identification of the factual circumstances which may constitute evidence in support of the application and to the legal assessment of that evidence, without it being necessary to assess the various points of Article 15 as a whole.

(2) Article 15 of Directive 2011/95, read in conjunction with Article 4(3) and (4) of that directive, must be interpreted as meaning that the individual position and personal circumstances of the applicant, including his or her occupation, must be taken into account in the assessment under Article 15(c), in so far as those factors increase the specific risk of his or her being exposed to a serious and individual threat to life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

(3) Article 15(b) of Directive 2011/95, must be interpreted as meaning that the ‘sliding scale’ which, according to the case-law of the Court, is applied for the purposes of the assessment under Article 15(c) does not apply to that first provision.

(4) The fourth question is inadmissible.

* * *

(1) Original language: French.

(2) OJ 2011 L 337, p. 9.

(3) ‘The judgment in NA. v. the United Kingdom’.

(4) Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 (United Nations Treaty Series, Vol. 189, p. 150, No 2545 (1954)), as amended by the Protocol relating to the Status of Refugees, concluded in New York on 31 January 1967.

(5) Judgment of 10 June 2021, Bundesrepublik Deutschland (Concept of ‘serious and individual threat’) (C‑901/19, EU:C:2021:472, paragraph 22).

(6) Directive of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60).

(7) Judgment of 29 July 2019, Torubarov (C‑556/17, EU:C:2019:626).