Date

6^th of March 2019

Type of Act

(name in English / in the official language)

Decision of the Supreme Administrative Court (Verwaltungsgerichtshof), Ro 2019/19/0006 of 21^st of May 2019

Enacted by

Supreme Administrative Court

Reference to the Constitution (art.)

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Subject area

Asylum law, interpretation of national provisions in the light of an EU directive (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 L 337, 20.12.2011, p. 9–26)

If the act implements a source of EU Law: cite the relevant EU legal source

Comment

According to the case-law of the ECJ, the Status Directive provides for subsidiary protection only in cases of a real risk to suffer harm (due to the conduct of an actor or in case of threats in an armed conflict). Therefore, the national legislator cannot enact or maintain provisions, which grant a foreign person the status of subsidiary protection irrespective of the cause. A national grant of protection on other grounds - in particular family or humanitarian - does not fall within the scope of the Status Directive and requires a form that excludes the risk of confusion with the grant of protection under that Directive.

According to § 8 (1) AsylG 2005, which is granting the status of a subsidiary beneficiary, any real risk of a violation of Art. 3 ECHR in the country of origin, irrespective of being caused by actors or threats by armed conflict, is sufficient. Against the background of the clear will of the legislator, a so-called teleological reduction is not possible. It is therefore not possible to interpret § 8 (1) AsylG 2005 in conformity with the Directive.

Secondary sources/ doctrinal works (if any)

Available Text

https://www.vwgh.gv.at/rechtsprechung/aktuelle_entscheidungen/2019/ro_2019190006.pdf?71poih

Date of entry into force