Vermeulen and Woltjer, ‘Wat te geloven?’, 2014
Ben Vermeulen and Aleidus Woltjer, ‘Wat te geloven? Over discretie, zel nterpretatie en vervolging wegens godsdienst en seksuele gerichtheid’, Nijmegen Migration Law Working Papers Series (8), 2014
Since several years, the Court of Justice of the European Union – next to the European Court of Human Rights – acts as European asylum judge. Over the past decade several directives and some regulations have been established, which specify the main elements of the right to asylum. The meaning of these secondary EU legislation based on EU primary law – the Treaty on the Functioning of the European Union and the EU Charter of Fundamental Rights – can and should (sometimes) be referred to the Court of Justice through preliminary references. The Court of Justice of the European Union shall have jurisdic- tion to give preliminary rulings concerning the interpretation of the Treaties as well as the validity and interpretation of acts of the institutions, bodies, offices, or agencies of the Union.
One of the elements of the Common European asylum system is the Qualification Directive 2004/83/EC, that seeks to codify and clarify the non-refoulement provisions of the Geneva Conven- tion (Article 33 in combination with Article 1) and arising from the ECHR (Article 3). An example of the relevance of the Court of Justice as European asylum court is to be found in the judgment in the case Y and Z against Germany, dated 5 September 2012. The central question in this case was, when there is persecution on the ground of religion (Articles 9 and 10 of the Qualification Directive ).
In this article we will have a closer look at this judgement and the possible consequences thereof for the assessment of asylum applications, in particular when the ground for persecution is religion or sexual orientation is at stake. We will also consider the relationship with the other European asylum system, such as that resulting from the ECHR as interpreted by the ECtHR.