Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)
Judgment of the Court (Grand Chamber) of 11 June 2024, Staatssecretaris van Justitie en Veiligheid (Women identifying with the value of gender equality), Case C-646/21, EU:C:2024:487
Reference for a preliminary ruling – Area of freedom, security and justice – Common asylum policy – Directive 2011/95/EU – Qualification for refugee status – Article 2(d) and (e) – Reasons for persecution – Article 10(1)(d) and (2) – ‘Membership of a particular social group’ – Article 4 – Individual assessment of the facts and circumstances – Directive 2013/32/EU – Article 10(3) – Requirements for the examination of applications for international protection – Article 24(2) of the Charter of Fundamental Rights of the European Union – Best interests of the child – Determination – Third-country nationals who are minors and who identify with the fundamental value of equality between women and men by reason of their stay in a Member State
Facts
Two sisters of Iraqi nationality, born in 2003 and 2005, respectively, have stayed continuously in the Netherlands since 2015. After their initial applications for international protection were rejected, by decisions that became final in 2018, they submitted subsequent applications in 2019. In support of those applications, they stated that, due to their long stay in the Netherlands, they have adopted the norms, values and conduct of young people of their age in that society. They claim that, if they return to Iraq, they would be unable to conform to the norms of a society which does not afford women and girls the same rights as men and fear being exposed to a risk of persecution due to the identity which they have formed in the Netherlands. They submit that they are therefore members of a ‘particular social group’, within the meaning of Article 10(1)(d) of Directive 2011/95.
Those subsequent applications were also rejected by the competent Dutch authorities. The two sisters challenged those rejection decisions before the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court, The Hague, sitting at ’s-Hertogenbosch, Netherlands), which decided to refer to the ECJ questions for a preliminary ruling in order to ascertain how the concept of ‘membership of a particular social group’, within the meaning of Article 10(1)(d) of Directive 2011/95, is to be interpreted, as well as the manner in which the best interests of the child, guaranteed in Article 24(2) of the Charter, are to be taken into account in the procedure for examining applications for international protection.
Findings of the ECJ
In its judgment, the ECJ recalls that a group is to be considered a ‘particular social group’, within the meaning of Article 10(1)(d) of Directive 2011/95, where two cumulative conditions are satisfied. First, the persons who may belong to it must share at least one of three identifying features, namely an ‘innate characteristic’, a ‘common background that cannot be changed’ or a ‘characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it’. Second, that group must have a ‘distinct identity’ in the country of origin ‘because it is perceived as being different by the surrounding society’.
As regards the first condition, the ECJ declares that “the fact that a woman genuinely identifies with the fundamental value of equality between women and men, in so far as it presupposes a desire to benefit from that equality in her daily life, entails being free to make her own life choices, particularly in relation to her education and career, the extent and nature of her activities in the public sphere, the possibility of achieving economic independence by working outside the home, her decision on whether to live alone or with a family, and the free choice of a partner, choices which are fundamental to her identity.” In those circumstances, the fact that a woman who is a third-country national genuinely comes to identify with the fundamental value of equality between women and men may be considered ‘a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it’, within the meaning of Article 10(1)(d) of Directive 2011/95. The ECJ also observes that “the fact that young women who are third-country nationals have stayed in a host Member State during a phase of their lives in which a person’s identity is formed, and that, during that stay, they have genuinely come to identify with the fundamental value of equality between women and men” is capable of constituting ‘a common background that cannot be changed’, within the meaning of the same provision.
As regards the second condition, the ECJ holds that “women may be perceived as being different by the surrounding society and recognised as having their own identity in that society, in particular because of social, moral or legal norms in their country of origin”.
Therefore, Article 10(1)(d) of Directive 2011/95 must be interpreted as meaning that, depending on the circumstances in the country of origin, women who are nationals of that country, including minors, who share as a common characteristic the fact that they genuinely come to identify with the fundamental value of equality between women and men during their stay in a Member State may be regarded as belonging to ‘a particular social group’, constituting a ‘reason for persecution’ capable of leading to the recognition of refugee status. To that effect, the ECJ also points out, there is no requirement that the fact that those women genuinely identify with the fundamental value of equality between women and men be political or religious.
As regards Article 24(2) of the Charter, the ECJ interprets this provision as precluding the competent national authority from deciding upon an application for international protection submitted by a minor without having concretely determined the best interests of that minor in the context of an individual assessment. The ECJ emphasizes that a long stay in a Member State, especially where it coincides with a period during which an applicant who is a minor has formed his or her identity, may be taken into account for the purpose of assessing an application for international protection based on a reason for persecution such as ‘membership of a particular social group’, within the meaning of Article 10(1)(d) of Directive 2011/95.
Judgment of the Court (Grand Chamber) of 25 June 2024, Ilva and Others, Case C-626/22, EU:C:2024:542
Reference for a preliminary ruling – Environment – Article 191 TFEU – Industrial emissions – Directive 2010/75/EU – Integrated pollution prevention and control – Articles 1, 3, 8, 11, 12, 14, 18, 21 and 23 – Articles 35 and 37 of the Charter of Fundamental Rights of the European Union – Procedures for the grant and reconsideration of a permit to operate an installation – Measures for the protection of the environment and human health – Right to a clean, healthy and sustainable environment
Facts
The Ilva plant is located in Taranto, in southern Italy. It started activity in 1965. With approximately 11 000 employees and covering an area of almost 1 500 hectares, it is one of the largest steelworks in Europe.
The applicants in the main proceedings have brought a collective action before the Tribunale di Milano (District Court, Milan, Italy), seeking to protect the rights of approximately 300 000 inhabitants of the municipality of Taranto and the adjacent municipalities. They claim that the activities of the Ilva plant seriously impinge on their rights to health, to peace and tranquillity in the conduct of their lives and to the climate, as the emissions from the Ilva plant expose those inhabitants to a higher death-rate and a higher rate of illness. The applicants in the main proceedings also criticise the extension of the deadline for the implementation of measures to reduce the impact of the continued operation of the Ilva plant and submit that the emissions from the Ilva plant do not comply with the requirements of the Directive 2010/75.
The Tribunale di Milano referred questions to the ECJ on the interpretation of several provisions of that Directive in order to assess whether the Italian legislation and the special derogating rules applicable to the Ilva plant in order to ensure its continuity contravene the Directive.
Findings of the ECJ
In its judgment, the ECJ draws attention to the close link between the protection of the environment and that of human health, which constitute key objectives of EU policy on the environment and stem, inter alia, from Article 191(1) TFEU and Articles 35 and 37 of the Charter. It observes that Directive 2010/75 contributes to the achievement of those objectives and to safeguarding the right to live in an environment which is adequate for personal health and well-being.
In this context, the ECJ recalls that the concept of ‘pollution’ is defined, in Article 3(2) of Directive 2010/75, as covering, inter alia, the introduction of substances into air, water or land which may be harmful to human health or the quality of the environment. More generally, the ECJ interprets Directive 2010/75, in the light of Article 191 TFEU and Articles 35 and 37 of the Charter, as meaning that “the Member States are required to provide that the prior assessment of the effects of the activity of the installation concerned on the environment and on human health must be an integral part of the procedures for granting or reconsidering a permit to operate such an installation under that directive”.
The ECJ points out that, according to the Tribunale di Milano, the relevant national provisions provide for an ex post assessment of the impact of the industrial activities at issue on human health. Furthermore, under the special rules applicable to the Ilva plant, it is not provided that that assessment of adverse effects on health is a prerequisite for the grant of an Integrated Environmental Permit, or that it forms an integral part of the procedures for granting or reconsidering that permit. Additionally, the reports assessing the adverse effects on health in relation to the Ilva plant drawn up by the competent health protection authorities show that there was an unacceptable risk for the population linked to certain pollutant emissions from that plant. The impact of those polluting substances on the environment and human health was not, however, assessed in the context of the 2011 and 2012 Integrated Environmental Permits. In this regard, the ECJ reiterates that the assessment of the impact of an installation’s activity on human health must form an integral part of the procedures for the grant and reconsideration of the authorisation to operate that installation and must be a prerequisite to the grant or reconsideration of that permit. In particular, “that assessment must be taken into consideration, effectively and in a timely manner, by the authority competent to grant or reconsider that permit”. Where such an assessment reveals results showing the unacceptable nature of the danger to the health of a large population exposed to polluting emissions, the permit concerned must be reconsidered in a short time frame.
The ECJ also clarifies that Directive 2010/75 must be interpreted as meaning that, “for the purposes of granting or reconsidering a permit to operate an installation under that directive, the competent authority must take into account, in addition to the polluting substances that are foreseeable having regard to the nature and type of industrial activity concerned, all those polluting substances which are the subject of emissions scientifically recognised as harmful which are liable to be emitted from the installation concerned, including those generated by that activity which were not assessed during the initial authorisation procedure for that installation”.
Finally, it further states that the same directive must be interpreted as “precluding national legislation under which the period granted to the operator of an installation to comply with the measures for the protection of the environment and human health provided for in the permit to operate that installation has been repeatedly extended, whereas serious and significant risks to the integrity of the environment and human health have been identified”. Where the activity of the installation concerned presents such risks, the second subparagraph of Article 8(2) of that Directive requires, in any event, that the operation of that installation be suspended.
