Trial by Mathematics and the EU’s Subsidiary Protection Regime – A strategic preliminary reference pending before the CJEU in Case C‑901/19

Subsidiary protection from the violence of armed conflict under the EU’s Qualification Directive (QD) has gained considerable importance in national asylum systems (I.). Based on a 2011 judgment of the German Federal Administrative Court (FAC), national courts in Germany have regularly denied such subsidiary protection after an entirely quantitative assessment because they calculated the risk to be killed or injured in the country of origin to be lower than 0.125% (II.).

In 2019, the Higher Administrative Court of Mannheim made a preliminary reference to the CJEU directed against this FAC jurisprudence (Case C‑901/19), which is currently pending before the Court of Justice. In a surprising response to the preliminary reference, the FAC issued a judgment in May 2020, in which it sought to clarify that its jurisprudence had actually never established a “quantitative minimum threshold” for the determination of subsidiary protection. This clarification, which arguably overrules the 2011 judgment, is remarkable as lower courts and legal commentators had for years unanimously seen precisely such a threshold in the FAC’s case law. The Mannheim court’s reference and the FAC’s answer could be considered “strategic” and are therefore relevant not only for the EU asylum system but also, more generally, for the structure of the preliminary reference mechanism before the Court of Justice (III.).

The German Government seems to have argued that the reference made by the Mannheim court is now moot because of the FAC’s clarification. But an interpretation of EU law by the CJEU in response to the reference remains highly necessary. The Advocate General in his Opinion of 11 February 2021 has already affirmed that the reference continues to be relevant. But there is another reason why the Court of Justice should rule on this reference: German courts could and do largely continue this practice even after the FAC’s clarification (IV.). Owing to this uncertainty in the German case law, and to rule out any misunderstandings, the Court of Justice should rule that any determination of subsidiary protection status that solely relies on quantitative factors is incompatible with the Qualification Directive (V.).

I. Subsidiary Protection from Armed Conflict Under EU Law

According to Article 15(c) QD, a civilian qualifies for subsidiary protection if he or she is subject to a “serious and individual threat to … [his or her] life or person by reason of indiscriminate violence in situations of international or internal armed conflict”. While not eligible for refugee status, the person thereby enjoys subsidiary protection from being removed to his or her country of origin.

Interpreting the “individual” nature of the threat in Elgafaji, the Court of Justice referred to recital 35 QD (ex 26), which determines that “risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm” (para. 36). Based on this, the Court of Justice clarified in the same case that an individual threat can emanate from the existence of an armed conflict only under exceptional circumstances. If “the degree of indiscriminate violence characterising the armed conflict taking place … reaches such a high level that substantial grounds are shown for believing that a civilian … would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat“ (para. 46; for more detail see EASO’s judicial analysis).

II. Risk Assessment in German Court Practice

The FAC’s case law has always required German administrative courts to take into account qualitative and quantitative factors to determine whether substantial grounds exist within the meaning of Article 2(f) QD for believing the person to be exposed to such a serious and individual threat. Quantitatively, this jurisprudence requires a form of cross-multiplication: the population of the country or region of origin must be divided by the number of persons killed or injured by indiscriminate violence emanating from the armed conflict, and the result must be multiplied by 100 to arrive at a risk percentage. For example, the Hamburg Administrative Court calculated that, in 2019, 1,536 civilians were killed or injured in the province of Kabul, Afghanistan. With an estimated population of 5,029,850, the resulting quantitative “risk density” (Gefahrendichte) was calculated to be 0.03%.

Based on this quantitative assessment, a qualitative assessment must be conducted. If the person is at higher risk for individual reasons, for instance if he or she works as a journalist, this will decrease the level of general violence that is required. Other, more general qualitative factors could potentially lead to the same result, for example if armed actors specifically target civilians as part of their strategy.

Administrative courts in Germany, however, have relied on an FAC judgment from 2011 to deny a person subsidiary protection based on a quantitative assessment alone if the quantitative risk density was lower than 0.125% (or, put differently, higher than 1 to 800). In this 2011 judgment, the FAC upheld the decision of a Higher Administrative Court which had denied subsidiary protection without considering any qualitative factors. The FAC held that the quantitative risk density of 0.125% was so far removed from the necessary threshold that the Higher Administrative Court’s error in law (omitting a qualitative risk assessment) could not conceivably change the result (paras. 22-23). The FAC never specified at what point the risk density would be sufficiently high. So, it is unclear whether, for example, 0.15% is still too low.

III. A Strategic Preliminary Reference – and a Strategic Clarification?

In the preliminary reference from 2019, the Higher Administrative Court of Mannheim asks the CJEU whether Article 15(c) and Article 2(f) QD “preclude the interpretation and application of a provision of national law whereby a serious and individual threat … can only exist where a minimum number of civilian casualties (killed and injured) has already been established”. This preliminary reference is “strategic” in the sense that it is used by a lower court to mobilize the CJEU against national apex court jurisprudence (see generally on such preliminary references Claassen, Strategic Use of Preliminary Rulings).

The FAC, in turn, seems to have responded to the reference, even before the CJEU had a chance to hand down its ruling. In May 2020, the FAC clarified that its jurisprudence had never actually established a “mandatory, mathematical-statistical minimum threshold” (para. 21). This 2020 judgment likewise seems strategic because it appears to remove the necessity of the preliminary reference – or at least anticipates its result. Strictly speaking, the preliminary reference no longer seems “necessary to enable it [the Higher Administrative Court] to give judgment”, as required by Article 267 TFEU. At least, the German Government apparently contended this at the hearing before the CJEU (Advocate General’s Opinion, footnote 14).

Traditionally, the CJEU grants national courts considerable leeway in determining the necessity of a reference. In his Opinion of 11 February 2021, Advocate General Priit Pikamäe points out that the interpretation of national law is in the exclusive competence of the referring national court. But in “exceptional circumstances”, the CJEU has in the past examined “the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction”. The situation in the present case appears to be novel and the Court could conceivably assume that it is indeed “quite obvious“ that the interpretation of EU law sought “bears no relation to the facts of the main action or its purpose” (My, para. 25). After all, a national apex court explicitly ruled that the national jurisprudence which the preliminary reference is directed against does, in fact, not exist. It did so, explicitly referring to this specific preliminary reference. Based on the superior court’s clarification, the referring court might now be able to decide the case without an answer to its preliminary reference. It could grant subsidiary protection even though the quantitative risk density is below 0.125 %. Since the question could now be considered moot under national law, the Court of Justice might be tempted to follow the German Government’s argument that the preliminary reference was simply owed to a misunderstanding among national courts which has now been cleared up.

The intricacies of the national case law on the issue of a quantitative minimum threshold, however, confirm that it is generally wise for the Court of Justice to defer to the referring court’s judgment on the necessity of a reference in this regard. It should do so in this case for the following reasons.

IV. What Remains to be Clarified

Whether the issue of a quantitative minimum threshold is entirely moot depends on the interpretation of the FAC’s 2020 judgment. What is certain: German administrative courts are not (or at least no longer) prevented from granting subsidiary protection on qualitative grounds if the quantitative risk density is below 0.125%. This, in effect, provides an answer to the preliminary reference and is in conformity with the Advocate General’s Opinion which considers that Article 15(c) and Article 2(f) QD would preclude such a national practice. Even more, in case the quantitative data is so insufficient that not even an approximate calculation is possible, the assessment may be entirely qualitative, the FAC ruled.

Nevertheless, due to the fact that the FAC did not explicitly overrule its judgment from 2011, it may be possible for lower courts to continue to rely on a quantitative minimum threshold. The 2020 judgment clarifies only that courts are not prevented from granting subsidiary protection if the risk density is below 0.125%. But the 2011 judgment in effect allows lower courts to deny subsidiary protection on the ground alone that the risk density is below 0.125%. Theoretically, the 2011 judgment requires lower courts to always conduct a quantitative and qualitative assessment. But an appeal (Revision) to the FAC complaining that no qualitative assessment was conducted will nonetheless not be successful if the quantitative risk density is below 0.125%. If lower courts fail to conduct a qualitative assessment, this error in law is (according to the 2011 judgment) simply not relevant. When the quantitative risk is that low, the judgment seems to argue, omitting qualitative factors is a regrettable but ultimately immaterial error in law.

The clarifying judgment of 2020 could be taken as confirming the 2011 ruling because it did not explicitly overrule it. German administrative courts could continue to deny subsidiary protection based on a quantitative analysis alone. In fact, this has been the main use that German courts have made of this jurisprudence. Very many judgments denying subsidiary protection are based on this interpretation of the 2011 judgment (see for more detail, in German: Baade, Quantitative Mindestschwelle, NVwZ 2021, 299). Several lower court judgments issued after May 2020 continue in this direction uninterrupted. For example, referring to the FAC’s 2011 judgment, Regensburg’s Administrative Court denied subsidiary protection in November 2020 based on an entirely quantitative assessment because the risk density was calculated to be below 0.125%.

V. Why the Risk Assessment Must Not be Entirely Quantitative

The question of a quantitative minimum threshold is therefore far from resolved in German case law. Unless the FAC clearly overrules its 2011 judgment, the question remains relevant whether Article 15(c) and Article 2(f) QD prevent national courts from denying subsidiary protection status solely on account of the fact that the quantitative risk density is below 0.125 %. The answer to this question might be implicit in the above-mentioned Advocate General’s Opinion. Considering the intricacies of the German case law, however, this inference might not be drawn by all German courts. The Court of Justice should therefore explicitly clarify that a quantitative assessment alone may never serve to deny subsidiary protection status.

The remaining doubts should be resolved because the reasons for courts to rely on a quantitative minimum threshold persist: it promises objectivity, legal certainty and speedy proceedings. But as the use of mathematical reasoning in legal decisions more generally, these advantages may come at the cost of the decision’s correctness (see generally Laurence H. Tribe‘s seminal “Trial by Mathematics” which also inspired the title of this post). The quantitative minimum threshold promises more objectivity than it actually delivers: the minimum threshold is arbitrarily set at 0.125% and its calculation is subject to substantial uncertainties. Reliable data on population and casualties are often not available. Finally, the minimum threshold of 0.125% could be considered exceedingly high. Even armed conflicts that are generally agreed to cause significant casualties among the civilian population, like the one in Afghanistan but also Yemen, will often fail to pass that minimum threshold. As rightly noted by Advocate General Priit Pikamäe, the risk assessment must be comprehensive (paras. 51-52, 59). It must be quantitative and qualitative to arrive at well-reasoned and convincing results that comply with Article 4(3) QD which requires Member States to take into account all relevant facts as they relate to the country of origin.