Opinion of Advocate General Emiliou delivered on 11 January 2024.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2024:33
• Date: 11 January 2024
• Celex Number: 62022CC0563
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

EMILIOU

delivered on 11 January 2024(1)

Case C‑563/22

SN,

LN, represented by SN

v

Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite

(Request for a preliminary ruling from the Administrativen sad Sofia-grad (Administrative Court, Sofia, Bulgaria))

(Reference for a preliminary ruling – Area of freedom, security and justice – Asylum – Refugee status or subsidiary protection status – Directive 2011/95/EU – Conditions to be met by third-country nationals or stateless persons claiming refugee status – Stateless persons of Palestinian origin having availed themselves of the assistance of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) – Article 12(1)(a) – Exclusion from being a refugee – Cessation of UNRWA’s protection or assistance – Conditions to be entitled ipso facto to the benefits of Directive 2011/95 – Meaning of ‘when such protection or assistance has ceased for any reason’ – Importance of elements relating to the general living conditions prevailing in the Gaza Strip – Article 4 of the Charter of Fundamental Rights of the European Union – Living conditions amounting to ‘inhuman and degrading treatment’ – Threshold – Directive 2013/32/EU – Article 40 – Subsequent application for international protection – Obligation to reassess elements relating to that general situation which were already examined – Article 19(2) of the Charter – Principle of non-refoulement)

I. Introduction

1. The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) was established following the Israeli–Arab conflict of 1948, with a view to carrying out direct relief and works programmes for stateless persons of Palestinian origin registered with that agency. (2) Its area of operation has been defined as comprising Jordan, Lebanon, Syria, the West Bank (including East Jerusalem) and the Gaza Strip. UNRWA’s mandate has been successively renewed and is currently due to expire on 30 June 2026. (3)

2. SN and LN, the applicants in the main proceedings, are stateless persons of Palestinian origin who used to live in the Gaza Strip and are registered with UNRWA. They seek asylum for the second time in Bulgaria, after their first applications for international protection were rejected by the authorities of that Member State. They claim that they must be granted refugee status in application of the lex specialis contained in Article 12(1)(a) of Directive 2011/95/EU. (4) Under that provision, stateless persons of Palestinian origin who have availed themselves of UNRWA’s protection or assistance are excluded from that status. However, that exclusion no longer applies if that protection or assistance has ‘ceased’.

3. The present case raises an issue of obvious importance and sensitivity – particularly in the light of the events that have taken place in the Gaza Strip since Hamas’ attacks on Israel of 7 October 2023: can UNRWA’s protection or assistance be regarded as having ‘ceased’, in the light of the living conditions generally prevailing in that area, without it being necessary for the persons concerned to show that they are specifically targeted or affected by those conditions by reason of factors particular to their personal circumstances?

4. The dispute in the main proceedings arose before those events. Indeed, SN and LN’s claim and the elements on which the Administrativen sad Sofia-grad (Administrative Court, Sofia, Bulgaria) relies in its request for a preliminary ruling relate to the situation in the Gaza Strip as it was before or at the time when that request, dated 9 August 2022, was made. However, as I will explain in this Opinion, any assessment that that court or the competent national authorities will need to perform will have to take account of the situation currently prevailing in that area, over which several organs and representatives of the United Nations have expressed grave concerns. (5)

II. Legal framework

A. International law

1. The Geneva Convention (6)

5. Article 1(D) of the Geneva Convention provides:

‘This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.

When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.’

6. In the light of the nature of its operations, UNRWA must be regarded as an ‘[organ] or [agency] of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance’ within the meaning of Article 1(D) of the Geneva Convention.

2. Relevant resolutions of the United Nations General Assembly and Security Council

(a) Resolutions adopted prior to 7 October 2023

7. Various resolutions have been adopted by the United Nations General Assembly and Security Council concerning UNRWA or the situation in its area of operation, since the creation of that agency. In accordance with United Nations General Assembly Resolution No 74/83 of 13 December 2019:

‘The General Assembly,

…

Aware of the growing needs of the Palestine refugees throughout all the fields of operation, namely, Jordan, Lebanon, the Syrian Arab Republic and the Occupied Palestinian Territory,

Expressing grave concern at the especially difficult situation of the Palestine refugees under occupation, including with regard to their safety, well-being and socioeconomic living conditions,

Expressing grave concern in particular at the grave humanitarian situation and socioeconomic conditions of the Palestine refugees in the Gaza Strip, and underlining the importance of emergency and humanitarian assistance and urgent reconstruction efforts,

…

3. Affirms the necessity for the continuation of the work of [UNRWA] and the importance of its unimpeded operation and its provision of services, including emergency assistance, for the well-being, protection and human development of the Palestine refugees and for the stability of the region, pending the just resolution of the question of the Palestine refugees;

4. Calls upon all donors to continue to strengthen their efforts to meet the anticipated needs of [UNRWA], including with regard to increased expenditures and needs arising from conflicts and instability in the region and the serious socioeconomic and humanitarian situation, particularly in the Occupied Palestinian Territory, and those needs mentioned in recent emergency, recovery and reconstruction appeals and plans for the Gaza Strip …

…’

(b) Resolutions adopted since 7 October 2023

8. The events having taken place in the Gaza Strip since 7 October 2023 led the United Nations General Assembly to vote, on 27 October 2023, a resolution entitled ‘Protection of civilians and upholding legal and humanitarian obligations’, in which it called for ‘an immediate, durable and sustained humanitarian truce leading to a cessation of hostilities’ in the Gaza Strip. (7) Among other things, it noted ‘the grave deterioration of the situation’, deplored ‘the heavy civilian casualties and widespread destruction’ and expressed grave concern ‘at the catastrophic humanitarian situation in the Gaza Strip and at its vast consequences for the civilian population, largely comprising children’.

9. That resolution was followed, on 15 November 2023, by Resolution 2712 (2023) of the United Nations Security Council, calling, inter alia, for urgent and extended humanitarian pauses in the Gaza Strip. (8)

10. On 12 December 2023, the United Nations General Assembly voted a resolution entitled ‘Protection of civilians and upholding legal and humanitarian obligations’. (9) In that resolution, it demanded an immediate humanitarian ceasefire in the Gaza Strip and that humanitarian access to that area be ensured. It also reiterated its insistence that parties to the conflict comply with international law, notably with regard to the protection of civilians, and that all hostages be released immediately and without conditions.

11. On 22 December 2023, the United Nations Security Council adopted Resolution 2720 (2023), (10) recalling all of its relevant resolutions, particularly Resolution 2712 (2023). Among other things, it expressed ‘deep concern at the dire and rapidly deteriorating humanitarian situation in the Gaza Strip and its grave impact on the civilian population’, underlined ‘the urgent need for full, rapid, safe, and unhindered humanitarian access in to and throughout the entire Gaza Strip’, and took note of the ‘concerning reports from the leadership of the United Nations and humanitarian organizations in this regard’. It also reaffirmed its ‘strong concern for the disproportionate effect that the conflict is having on the lives and well-being of children, women, and other civilians in vulnerable situations’.

B. European Union law

(a) Directive 2011/95

12. Article 12 of Directive 2011/95, entitled ‘Exclusion’, provides:

‘1. A third-country national or a stateless person is excluded from being a refugee if:

(a) he or she falls within the scope of Article 1(D) of the Geneva Convention, relating to protection or assistance from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees. When such protection or assistance has ceased for any reason, without the position of such persons being definitely settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, those persons shall ipso facto be entitled to the benefits of this Directive;

…’

(b) Directive 2013/32 (11)

13. Pursuant to Article 40 of Directive 2013/32, entitled ‘Subsequent application’:

‘1. Where a person who has applied for international...