The case concerns a preliminary ruling on the interpretation of Article 9(2)(e) and (3) of the recast Qualification Directive (recast QD). The request was made by the Administrative Court of Hanover during proceedings between EZ, a Syrian national, and the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, BAMF), who refused refugee status and granted subsidiary protection.
EZ claimed refugee status in Germany on 28 January 2016, claiming that he would face persecution in Syria as he fled conscription out of fear of having to fight in the civil war. BAMF granted him subsidiary protection and noted that he had not been persecuted in Syria and none of the refugee grounds could be applied to him. EZ challenged this decision arguing that his flight from Syria to avoid military service and his application for asylum in Germany exposed him to a risk of persecution. The Administrative Court of Hanover stayed the proceedings and sought the interpretation of Article 9(2)(e) and (3) of the recast QD.
The CJEU held that, if the law of the country of origin does not allow refusing to perform military service, Article 9(2)(e) of the recast QD must be interpreted as not precluding that refusal from being established even if the individual did not formalise the refusal through a specific procedure and fled the country without reporting to the military authorities.
Furthermore, Article 9(2)(e) of the recast QD must be interpreted to mean that, in a civil war where crimes are committed systematically by the army, it should be assumed for a conscript who refuses to perform military service but does not have information about the future field of military operation will be, that the military service will involve the direct or indirect commission of crimes, irrespective of the field of operation.
Next, the CJEU ruled that there must be a connection between the grounds of persecution and the prosecution or punishment for refusing to perform military service.
On whether the connection is established solely because the prosecution and punishment are connected to that refusal, the court acknowledged that in many situations, refusal to perform military service is an expression of political opinions or religious beliefs or is motivated by membership of a particular social group. In those cases, the acts of persecution that follow the refusal are also linked to the same reasons. However, citing the Opinion of the Advocate General Sharpston (20 May 2020), the court highlighted that the reasons for refusing military service may also be different from the five reasons for persecution and, in particular, be motivated by the fear of being exposed to the dangers associated with performing military service in the context of armed conflict.
Thus, the court concluded that Article 9(2)(e) in conjunction with Article 9(3) of recast QD must be interpreted to mean that a connection between the reasons mentioned in Article 2(d) and Article 10 of that directive and the prosecution and punishment for refusal to perform the military service referred to in Article 9(2)(e) cannot be established solely because the prosecution and punishment are linked to that refusal. However, there is a strong presumption that refusal to perform military service under the conditions set out in Article 9(2)(e) of that directive relates to one of the five reasons set out in Article 10 thereof. The national authorities must ascertain, in light of all the circumstances at issue, whether that connection is plausible.