Quantitative decision-making in subsidiary protection cases: Bundesrepublik Deutschland

Bundesrepublik Deutschland (quantitative minimum threshold) is an important precedent for the determination of subsidiary protection status by Member States with regard to situations of armed conflict. In this case, the European Court of Justice (ECJ) clarified the requirements of Directive 2011/95 (the Qualification Directive), ruling that the risk assessment under arts 2(f) and 15(c) must be comprehensive and thus cannot rely on quantitative factors alone. In particular, the ruling has a major impact on German court practice with regard to subsidiary protection under the Qualification Directive, since German courts for a decade took an approach that relied heavily, often exclusively, on a quantitative assessment of the risk faced by persons upon return to their country of origin. Often, they denied protection if the risk to be killed or injured in armed conflict was calculated to be lower than 0.125 per cent. In addition to this substantive aspect, the case is of considerable interest for procedural reasons. The referring court sought a judgment by the ECJ in order to challenge the jurisprudence of the Federal Administrative Court, and this court reacted to the challenge in an obiter dictum that could have made the referral moot.