CJEU - C-573/15, Commissaire général aux réfugiés et aux apatrides v. Mostafa Lounani

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Country of Applicant: 
Morocco
Date of Decision: 
31-01-2017
Citation: 
Case C-573/15
Court Name: 
Grand Chamber of the Court of Justice of the European Union
Headnote: 

The CJEU in this case expanded on its previous ruling of B & D. Whereas previously the scope of the exclusion clause for those engaging in terrorist acts was limited to engaging in, conspiring to or planning an actual act of terrorism with an international dimension, the CJEU has now widened the scope to include those who provide logistical support even where no act of terrorism takes place. 

Facts: 

Mr. Lounani was convicted of participating in a terrorist group – the Moroccan Islamist Combatant Group, in 2006. The acts committed are as follows: ‘providing logistical support to a terrorist group by the provision of, inter alia, material resources or information’; ‘forgery of passports’ and ‘fraudulent transfer of passports’, ‘active participation in the organisation of a network for sending volunteers to Iraq’. The judgment of the 2006 conviction describes the transfer of passports as ‘an act of participation in the activities of a cell providing logistical support to a terrorist movement’.

Following three decisions from the Commissaire général aux réfugiés et aux apatrides (the Belgian Commissioner General for Refugees and Stateless Persons; CGRA) to exclude Mr. Lounani and these being subsequently overturned by the CCE as being insufficiently reasoned, the state appealed this ruling on a point of law to the Conseil d’Etat (Council of State), which in July 2012, set aside the CCE’s decision, referring the case back to the CCE to be heard in a different composition.

In this subsequent decision, the CCE held that the decision relating to exclusion cannot stand because essentially, Mr. Lounani had been found guilty of membership of a particular terrorist organisation and not of participating in a terrorist act as defined in Article 137 of the amended Criminal Code. Furthermore, no specific act by the MICG falling within the scope of a terrorist offence had been established, nor had any of Mr. Lounani’s own conduct given rise to his individual liability under the same provision been established. The Court held that Mr. Lounani’s conduct had not reached the required threshold to fall foul of Article 12(2)(c) of the Qualification Directive – ‘acts contrary to the purpose and principles of the United Nations.’ The CCE then varied the CGRA’s decision of May 2011 to grant Mr. Lounani refugee status. The CGRA then brought an administrative appeal to the Conseil d’Etat, which in turn sent a preliminary reference to the CJEU.

Decision & Reasoning: 

Please find the questions here.

First question:

The Court held that ‘acts contrary to the purposes and principles of the United Nations’, as provided for in Article 1F(c) of the Geneva Convention and in Article 12(2)(c) of Qualification Directive cannot be limited to the acts set out in Security Council Resolutions. Article 1 of the Council Framework Decision 2002/475 contains four subsets of terrorist offensives, subset 1 of which relates to acts of terrorism. The Court held that Article 12(2)(c) of the Qualification Directive and Article 1F(c) of the Geneva Convention could not be limited to Article 1(1) of the Framework Decision. Furthermore the Court held that the provisions were in existence at the time the Qualification Directive was drafted and if the legislators had wanted to restrict the scope of Article 12(2)(c) to Article 1(1) of the Framework Directive, then they could have.

The scope of the exclusion clauses cannot be confined to acts of terrorism but must also extend to the ‘recruitment, organisation, transportation or equipment of individuals who travel to a State other than their States of residence or nationality for the purpose of, inter alia, the perpetration, planning or preparation of terrorist acts.

Second and third questions:

The Court noted the Commission’s point regarding such participatory acts varying in terms of conduct and degrees of seriousness, but the Court reiterated the test for an individual assessment as laid down in B & D and stated that it still applies. The decision as to whether conduct falls within the scope of Article 12 of the Qualification Directive is that of the national authorities and courts. However, of importance to the individual assessment of whether there are serious reasons for considering that a person has committed acts contrary to the purpose and principles of the UN by the national authority is whether such a person ‘has instigated such acts or has otherwise participated in such acts, the fact that that person was convicted by the courts of a Member State on a charge of participation in the activities of a terrorist group is of particular importance, as is a finding that that person was a member of the leadership of that group, and there is no need to establish that that person himself or herself instigated a terrorist act or otherwise participated in it.’

Subsequently, the fourth and fifth questions were not relevant. 

Outcome: 
  1. It is not a prerequisite to the application of the exclusion clause in Article 12(2)(c) of the Qualification Directive that such a person had been convicted of an offence within the scope of Article 1(1) of the Framework Decision 2002/475; and
  2. Article 12(2)(c) must be interpreted as meaning that for a person to be excluded from protection they need not only have committed acts of terrorism defined in various Security Council Resolutions. A person may also be excluded for participating in the activities of terrorist groups. It is of particular importance to a finding that ‘there are serious reasons for considering that a person has been guilty of acts contrary to the purposes and principles of the United Nations’ where a person has participated in the leadership of a terrorist organisation, where a person has been convicted in a national court of participating in a terrorist organisation and there is no need to establish that the person instigated a terrorist act or otherwise participated in it.  
Observations/Comments: 

The findings were broadly in line with the Opinion of AG Sharpston.

Case Law Cited: 

Case C‑231/15, Prezes Urzędu Komunikacji Elektronicznej and Petrotel, 13 October 2016, EU:C:2016:769

Case C‑182/15, Petruhhin, 6 September 2016, EU:C:2016:630,

Case C 397/14, Polkomtel, 14 April 2016, EU:C:2016:256
Attachment(s): 
Other sources cited: 

Articles 1, 2, 3 and 4, Framework Decision 2002/475

Articles 1(1) and (3) of the UN Charter

Security Council Resolution 1373 (2001)

Security Council Resolution 1377 (2001)

Security Council Resolution 1624 (2005)

Security Council Resolution 2178 (2014)

Authentic Language: 
French
Country of preliminary reference: 
Belgium
National / Other Legislative Provisions: 
Belgium - Law of 19 December 2003 on terrorist offences (implementing Framework Directive 2002/475)
Belgium - Criminal Code Article 137(1)
Belgium - Criminal Code Article 140
Article 55/2 of Law of 15 December 1980 on entry to Belgian territory