How to use the Court of Justice of the European Union in Refugee and Asylum cases or Related Violations

Making a preliminary reference to the Court

Under Article 267 of the Treaty on the Functioning of the European Union (TFEU), the reference for a preliminary ruling is a question asked by a national court to the Court of Justice of the European Union (CJEU) regarding the application of European Union (EU) law. Only a national court can bring a case to the Court of Justice, not a party or the individuals concerned. Thus, this procedure is entirely decided by the national court, whether the parties have raised it or not in the proceedings. It is not an individual application.

A national court concerned with an issue regarding the application of an EU rule can decide to refer to the CJEU to resolve the question. Accordingly, preliminary references usually relate to the interpretation of rules of EU law.

Once the CJEU gives a binding judgment answering the question referred, the national court must apply the law in accordance with the Court’s guidance.

Given that the EU has common rules on asylum under its Common European Asylum System, the adjudication of refugee status has become a matter of EU law in which preliminary references can be made to the CJEU. For example, a number of issues around the Qualification Directive (the legislative instrument which sets out the conditions for granting refugee status in the EU) have been referred to the Court for clarification.

Examples of CJEU preliminary rulings on the Qualification Directive include:

– Whether a person is required to abstain from religious practices in the country of origin to avoid persecution (Germany v Y & Z)
– Whether criminalisation and punishment of same-sex acts constitute persecution (X, Y & Z v Minister voor Immigratie en Asiel)
– Whether a person participating in a terrorist organisation is automatically excluded from refugee status (B & D v Germany)

Similarly, a preliminary reference to the CJEU could be made in relation to questions around the Reception Conditions Directive, the Asylum Procedures Directive, or the Dublin Regulation.

Click here for more information on the preliminary reference.

Written by Minos Mouzourakis (minosmouzourakis@gmail.com)