Mr Shepherd, a USA national, enlisted for service and was transferred to an air support battalion in Katterbach (Germany). His unit was deployed in Iraq where he worked solely in helicopter maintenance from September 2004 until February 2005. In February his unit returned to Germany, and he extended the term of his contract. On 1 April 2007, he received a travel order to return to Iraq. Before his planned departure from Germany, he left the army on 11 April 2007 believing that he must no longer play any part in a war in Iraq he considered illegal. He applied for asylum in Germany in August 2008 arguing that due to his refusal to perform military service in Iraq, he was at risk of criminal prosecution and that desertion being a serious offence in the United States, it affected his life by putting him at risk of social ostracism in his country. On 31 March 2011, the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, BAMF) rejected the asylum application. Mr Shepherd appealed to the Bavarian Administrative Court (referring court) for annulment and requesting to be granted refugee status. The court decided to stay the proceedings and submitted eight questions to the Court of Justice of the European Union (CJEU).

The CJEU addressed the first seven questions together first. They concerned whether Article 9(2)(e) of the Qualification Directive (Directive 2004/83) must be interpreted to mean that certain circumstances, relating in particular to the nature of the tasks performed by the soldier concerned, the nature of his refusal to perform military service, the nature of the conflict in question and the nature of the crimes which that conflict is alleged to involve, have a decisive influence in the assessment which must be carried out by the national authorities  to verify whether a situation such as that at issue in the main proceedings falls within the scope of that provision.

At the outset, the court noted that the context of the QD is essentially humanitarian, and that the EU legislature, in adopting Article 9(2)(e) did not mean to restrict its scope to certain personnel, the provision covering all military personnel including logistical or support staff. However, the court noted, with the aim of identifying persons who genuinely and legitimately need international protection in the EU, being a member of the military is a necessary but not sufficient condition for being eligible for the protection of Article 9(2)(e). 

The court clarified that, to apply the provision, it is necessary, first, that the circumstances relate to a particular conflict; second, that it is the military service itself that would involve war crimes; and that the indirect participation of an individual does not prima facie preclude the application of the provision however, the court nuanced, protection can be extended only to those other persons whose tasks could, sufficiently directly and reasonably plausibly, lead them to participate in such acts; third, to apply the provision, the individual can only invoke the likelihood of future acts; fourth, it falls on the national authorities to determine the situation of the military service. In this respect, the court noted that although certain acts such as the past conduct of the applicant's unit or criminal sentences passed on members of that unit may constitute indicia that it is probable the unit will commit further war crimes, such events cannot by themselves automatically establish, at the time of the applicant for refugee status's refusal to serve, that it is likely that such crimes will be committed. 

Against that background, the court noted that the assessment which the national authorities must carry out can be based only on a body of evidence which alone can establish, in view of the circumstances in question, that the situation of that military service makes it credible that such acts will be committed. In relation to this, the court noted that an armed intervention engaged upon on the basis of a resolution adopted by the Security Council or international consensus offers, in principle, every guarantee that no war crimes will be committed. Thus, the fact that the armed intervention takes in such a context must be taken into account. The court further highlighted that the possibility that the state or states which conduct operations prosecute war crimes must also be taken into consideration.

Finally, the court ruled that since the acts of persecution invoked by the applicant must arise from his refusal to perform military service, that refusal must constitute the only means by which that applicant could avoid participating in the alleged war crimes. The court held that in the present case, national authorities must consider that the applicant not only enlisted voluntarily in the armed forces at the time when they were already involved in the conflict in Iraq but also, after carrying out one tour of duty in that country, re-enlisted in those forces. Based on this, the court concluded that availing oneself of a procedure for obtaining conscientious objector status excluded any protection under Article 9(2)(e) QD unless the applicants prove that no procedure of that nature would have been available to them in their specific situation.

Next, the CJEU answered question eight. The question concerned whether Article 9(2)(b) and (c) of the QD must be interpreted as meaning that the measures incurred by a solider as a result of his refusal to perform military service, such as the imposition of a prison sentence, dishonourable discharge from the army, and the ostracism and disadvantages associated therewith constitute acts of persecution for the purpose of those provisions. 

The court recalled at the outset that the provisions of Article 9(2)(b) and (c) of the QD refer to measures taken by the public authorities whose discriminatory or disproportionate nature must be sufficiently serious to be considered an infringement of Article 1(A) of the Geneva Convention. To assess this, the court held that it is necessary to consider whether such acts go beyond what is necessary for the State concerned to maintain an armed force. In this respect, the court ruled that it does not appear that the imposition of criminal penalties on soldiers who intend to evade their service, or their discharge from the army, are unjustified in view of the legitimate right of the State to preserve an armed force, which is for the national authorities to determine. As for the case at hand the court ruled that a custodial sentence for desertion of 100 days to 15 months or even five years suggest that they go beyond what is necessary for the State concerned to exercise its legitimate right to maintain an armed force.

Furthermore, the court held that assessing the discriminatory nature of the acts would entail verifying whether the situation of soldiers refusing to perform military service may be compared to that of other persons, to assess whether the penalties imposed on the former are of a clearly discriminatory nature, which is for the national authorities to determine. Social ostracism and disadvantages were consequences and could not thus be regarded as acts of persecution.