K and L v Staatssecretaris van Justitie en Veiligheid.

• Jurisdiction: European Union
• Celex Number: 62021CJ0646
• ECLI: ECLI:EU:C:2024:487
• Date: 11 June 2024
• Docket Number: C-646/21
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

11 June 2024 (*)

(Reference for a preliminary ruling – Area of freedom, security and justice – Common asylum policy – Directive 2011/95/EU – Qualification for refugee status – Article 2(d) and (e) – Reasons for persecution – Article 10(1)(d) and (2) – ‘Membership of a particular social group’ – Article 4 – Individual assessment of the facts and circumstances – Directive 2013/32/EU – Article 10(3) – Requirements for the examination of applications for international protection – Article 24(2) of the Charter of Fundamental Rights of the European Union – Best interests of the child – Determination – Third-country nationals who are minors and who identify with the fundamental value of equality between women and men by reason of their stay in a Member State)

In Case C‑646/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court, The Hague, sitting at ’s-Hertogenbosch, Netherlands), made by decision of 22 October 2021, received at the Court on 25 October 2021, in the proceedings

K,

L

v

Staatssecretaris van Justitie en Veiligheid,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, L. Bay Larsen, Vice-President, A. Arabadjiev, C. Lycourgos, E. Regan, F. Biltgen and N. Piçarra (Rapporteur), Presidents of Chambers, P.G. Xuereb, L.S. Rossi, I. Jarukaitis, A. Kumin, N. Jääskinen, N. Wahl, I. Ziemele and J. Passer, Judges,

Advocate General: A.M. Collins,

Registrar: A. Lamote, Administrator,

having regard to the written procedure and further to the hearing on 18 April 2023,

after considering the observations submitted on behalf of:

– K and L, by B.W.M. Toemen and Y.E. Verkouter, advocaten, and by S. Rafi, experte,

– the Netherlands Government, by M.K. Bulterman, A. Hanje and A.M. de Ree, acting as Agents,

– the Czech Government, by L. Halajová, M. Smolek and J. Vláčil, acting as Agents,

– the Greek Government, by M. Michelogiannaki and T. Papadopoulou, acting as Agents,

– the Spanish Government, by A. Gavela Llopis and A. Pérez-Zurita Gutiérrez, acting as Agents,

– the French Government, by A.-L. Desjonquères and J. Illouz, acting as Agents,

– the Hungarian Government, by Zs. Biró-Tóth and M.Z. Fehér, acting as Agents,

– the European Commission, by A. Azéma and F. Wilman, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 13 July 2023,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 24(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 10(1)(d) and (2) 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 (OJ 2011 L 337, p. 9).

2 The request has been made in proceedings between, on the one hand, K and L and, on the other, the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands) concerning the rejection by the latter of K and L’s subsequent applications for international protection.

Legal context

International law

The Geneva Convention

3 Article 1(A)(2) of the Convention relating to the Status of Refugees, which was signed in Geneva on 28 July 1951 (United Nations, Treaty Series, Vol. 189, p. 150, No 2545 (1954)), entered into force on 22 April 1954 and was supplemented by the Protocol relating to the Status of Refugees, which was concluded in New York on 31 January 1967 and entered into force on 4 October 1967 (‘the Geneva Convention’), provides that ‘for the purposes of the present Convention, the term “refugee” shall apply to any person who … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …’.

The CEDAW

4 Article 1 of the Convention on the Elimination of All Forms of Discrimination against Women (‘the CEDAW’), which was adopted by the United Nations General Assembly on 18 December 1979 and entered into force on 3 September 1981 (United Nations, Treaty Series, Vol. 1249, No 1-20378, p. 13) and to which all Member States are party, provides that ‘for the purposes of the present Convention, the term “discrimination against women” shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field’.

5 Article 3 of that convention provides that States Parties are to take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on the basis of equality with men.

6 Under Article 5 of that convention, States Parties are to take all appropriate measures to, inter alia, modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.

7 Under Articles 7, 10 and 16 of the same convention, States Parties are to take all appropriate measures to eliminate discrimination against women in the political and public life of the country, in the field of education and in all matters relating to marriage and family relations.

The Istanbul Convention

8 In accordance with Article 1 thereof, the purpose of the Council of Europe Convention on preventing and combating violence against women and domestic violence, which was concluded in Istanbul on 11 May 2011, signed by the European Union on 13 June 2017 and approved on behalf of the European Union by Council Decision (EU) 2023/1076 of 1 June 2023 (OJ 2023 L 143 I, p. 4) (‘the Istanbul Convention’), and which entered into force, so far as the European Union is concerned, on 1 October 2023, is to, inter alia, protect women against all forms of violence, and prevent, prosecute and eliminate violence against women and domestic violence, and contribute to the elimination of all forms of discrimination against women and promote substantive equality between women and men, including by empowering women.

9 Article 3 of that convention states that, for the purpose of applying the Convention, “violence against women” is understood as a violation of human rights and a form of discrimination against women and shall mean all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.

10 Article 4(2) of that convention provides:

‘Parties condemn all forms of discrimination against women and take, without delay, the necessary legislative and other measures to prevent it, in particular by:

– embodying in their national constitutions or other appropriate legislation the principle of equality between women and men and ensuring the practical realisation of this principle;

– prohibiting discrimination against women, including through the use of sanctions, where appropriate;

– abolishing laws and practices which discriminate against women.’

11 Article 60 of the Istanbul Convention is worded as follows:

‘1 Parties shall take the necessary legislative or other measures to ensure that gender-based violence against women may be recognised as a form of persecution within the meaning of [Article 1(A)(2)] of the [Geneva Convention] and as a form of serious harm giving rise to complementary/subsidiary protection.

2 Parties shall ensure that a gender-sensitive interpretation is given to each of the [Geneva Convention] grounds and that where it is established that the persecution feared is for one or more of these grounds, applicants shall be granted refugee status according to the applicable relevant instruments.

…’

European Union law

Directive 2011/95

12 As set out in recitals 4, 16, 18 and 30 of Directive 2011/95:

‘(4) The Geneva Convention and the Protocol provide the cornerstone of the international legal regime for the protection of refugees.

…

(16) This Directive respects the fundamental rights and observes the principles recognised in particular by the [Charter]. In particular this Directive seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members and to promote the application of Articles 1, 7, 11, 14, 15, 16, 18, 21, 24, 34 and 35 of that Charter, and should therefore be implemented accordingly.

…

(18) The “best interests of the child” should be a primary consideration of Member States when implementing this Directive, in line with the 1989 United Nations Convention on the Rights of the Child. In assessing the best interests of the child, Member States should in particular take due account of the principle of family unity, the minor’s well-being and social development, safety and security considerations and the views of the minor in accordance with his or her age and maturity.

…

(30) It is equally necessary to introduce a common concept of the persecution ground “membership of...