Key facts of the case:

(Request for a preliminary ruling from the Bayerisches Verwaltungsgericht München (Germany))

(Area of freedom, security and justice — Asylum — Minimum standards for the qualification and status of third-country nationals as refugees and the content of the protection granted — Conditions for obtaining refugee status — Acts of persecution under Article 9(2)(e) of Directive 2004/83/EC — Prosecution and punishment of a member of the armed forces of the United States of America for refusing to serve in the war in Iraq)

Conclusion

84. In the light of the foregoing considerations I propose that the Court should answer the questions referred by the Bayerisches Verwaltungsgericht München (Germany) to the following effect:

• The scope of Article 9(2)(e) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted extends to military personnel who do not directly participate in combat, where such personnel could, in performing military service, be led to instigate or otherwise participate in the commission of crimes or acts of the kinds referred to in that provision.
• In assessing whether that is the case, the national authorities must consider: (i) whether there is a direct link between the acts of the person concerned and the reasonable likelihood that war crimes might be committed, because his actions comprise a necessary element of those crimes and without his contribution or all the contributions made by individuals in his situation, the war crimes or acts would not be possible; (ii) whether there are objective grounds for considering that the person concerned could be involved in committing war crimes. In that regard, it is inconsistent with Article 9(2)(e) of Directive 2004/83 to apply: (a) a criminal standard of proof (such as ‘beyond all reasonable doubt’) or (b) principles derived from international criminal law.
• The fact that the authorities in an applicant’s country of nationality prosecute war crimes does not preclude him from invoking Article 9(2)(e) of Directive 2004/83; whether there is a prosecution before the International Criminal Court is likewise of no relevance in that regard.
• The existence of a mandate from the United Nations Security Council covering the conflict in question does not preclude claims for refugee status based upon Article 9(2)(e) of Directive 2004/83.
• A person who refuses to perform military service cannot qualify for refugee status under Article 9(2)(e) of Directive 2004/83 unless either he has first had recourse, unsuccessfully, to any available procedures for claiming the status of conscientious objector or no such procedures are plausibly available to him.
• In assessing whether a person who refuses to perform military service may be considered to be a member of a particular social group for the purposes of Article 10(1)(d) of Directive 2004/83, it is necessary to take into account: (i) whether he holds a conviction of sufficient cogency, seriousness, cohesion and importance; (ii) whether by virtue of that conviction he meets the requirements of the first indent of Article 10(1)(d) in that his objection stems from a belief that is fundamental to his conscience; and (iii) whether individuals who hold such convictions are perceived as being different in their country of origin within the meaning of the second indent of Article 10(1)(d).
• In so far as an applicant relies upon Article 9(2)(b) and Article 10(1)(d) of Directive 2004/83, it is necessary for the competent national authorities to assess whether a dishonourable discharge from the army and a prison sentence is discriminatory because the applicant is a member of a particular social group. In making that assessment it is necessary to consider whether there are social groups in the country concerned that are comparable to that to which the applicant claims to belong in that such groups are similarly situated and whether the applicant’s group is likely to be subject to different treatment by virtue of the fact that it might be subject to court martial proceedings and/or dishonourable discharge and whether any apparent difference in treatment could be justified.
• In so far as an applicant relies upon Article 9(2)(c) of Directive 2004/83, it is necessary for the competent national authorities to assess whether prosecution or punishment for desertion is disproportionate. In that regard it is necessary to consider whether such acts go beyond what is necessary for the State concerned to exercise its legitimate right to maintain an armed force.