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Decision of 4 July 2019 - BVerwG 7 C 31.17 (uploaded on 30 January 2020)

Request to the CJEU for a preliminary ruling regarding the insolvency administrator's access to information about tax data of revenue authorities

Headnotes

Request to the CJEU for a preliminary ruling regarding the insolvency administrator's access to information about tax data of revenue authorities.

The Court of Justice of the European Union is requested to clarify the following questions concerning the interpretation of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation, OJ L 119 of 4 May 2016, p. 1) by way of a preliminary ruling in accordance with article 267 TFEU:

1. Does article 23 (1) (j) of Regulation (EU) 2016/679 also serve to protect the interests of revenue authorities?

2. If so, does the wording "the enforcement of civil law claims" also cover the defence of the revenue authority against civil law claims and must such claims already have been submitted?

3. Does the provision of article 23 (1) (e) of Regulation (EU) 2016/679 relating to the protection of an important financial interest of a Member State in taxation matters allow a restriction of the right of access under article 15 of Regulation (EU) 2016/679 in relation to the defence of civil law insolvency avoidance claims against the revenue authority?

Judgment of 4 July 2019 - BVerwG 1 C 31.18 (uploaded on 11 February 2020)

Risk upon return for a Syrian national who evaded reserve service by emigrating

Headnotes

1. In order for a well-founded fear of persecution as defined in section 3 (1) no. 1 AsylG to exist, a risk assessment based on the standard at the level of considerable probability of persecution is required; in this regard, the court responsible for finding the facts must also arrive at the conviction required under section 108 (1) VwGO even if the status of information is unclear.

2. A person seeking protection without having previously suffered persecution bears the burden of proof (or persuasion) for the considerable probability of the persecution with which the person is threatened upon return.

3. In the case of an act of persecution under section 3a (2) no. 5 AsylG, a connection with a reason for persecution is also required.

Decision of 14 May 2019 - BVerwG 1 C 5.18 (uploaded on 7 May 2020)

Decision to request a preliminary ruling concerning interpretation of article 12 (1) (a) of Directive 2011/95/EU

Headnotes

A preliminary ruling of the Court of Justice of the European Union is obtained on the following questions in accordance with article 267 TFEU:

1. When assessing the question of whether, within the meaning of article 12 (1) (a) second sentence of Directive 2011/95/EU, a stateless Palestinian is no longer granted protection or assistance of the UNRWA, is account to be taken from a geographical perspective solely of the respective field of operation (Gaza Strip, Jordan, Lebanon, Syria, West Bank) in which the stateless person had his or her actual residence upon leaving the area of operations of the UNRWA (in this case: Syria), or also of further fields of operation belonging to the area of operations of the UNRWA?

2. If account is not solely to be taken of the field of operation upon leaving: Is account always to be taken, regardless of further conditions, of all the fields of operation of the area of operations? If not: Are further fields of operation only to be taken into consideration if the stateless person had a substantial (territorial) connection to that field of operation? Is a habitual residence - at the time of or prior to leaving - required for such a connection? Are further circumstances to be taken into consideration when examining a substantial (territorial) connection? If so: Which ones? Does it matter whether it is possible and reasonable for the stateless person to enter the relevant field of operation when leaving the UNRWA area of operations?

3. Is a stateless person who leaves the area of operations of the UNRWA because his or her personal safety is at serious risk in the field of operation of his or her actual residence, and it is impossible for the UNRWA to grant him or her protection or assistance there, entitled, within the meaning of article 12 (1) (a) second sentence of Directive 2011/95/EU, ipso facto to the benefits of the Directive even if he or she previously went to that field of operation without his or her personal safety having been at serious risk in the field of operation of his or her former residence and without being able to expect, according to the circumstances at the time of the move, to experience protection or assistance by the UNRWA in the field of operation into which he or she moves and to return to the field of operation of his or her previous residence in the foreseeable future?

4. When assessing the question of whether a stateless person is not to be granted ipso facto refugee status because the conditions of article 12 (1) (a) second sentence of Directive 2011/95/EU ceased to apply once he or she left the area of operations of the UNRWA, is account to be taken solely of the field of operation of the last habitual residence? If not: Is consideration also, by analogy, to be given to the areas of which account is to be taken under no. 2 for the time of leaving? If not: Which criteria are to be used to determine the areas which are to be taken into consideration at the time of the decision on the application? Does the cessation of application of the conditions of article 12 (1) (a) second sentence of Directive 2011/95/EU require the (state or quasi-state) bodies in the relevant field of operation to be prepared to (re)admit the stateless person?

5. In the event that, in connection with the satisfaction or cessation of application of the conditions of article 12 (1) (a) second sentence of Directive 2011/95/EU, the field of operation of the (last) habitual residence is of significance: Which criteria are decisive for establishing habitual residence? Is lawful residence authorised by the country of residence required? If not: Is there at least a need for the conscious acceptance of the residence of the stateless person concerned by the responsible bodies of the field of operation? If so in this respect: Does the presence of the individual stateless person have to be specifically known to the responsible bodies or is the conscious acceptance of residence as a member of a larger group of people sufficient? If not: Is actual residence for a relatively long period of time sufficient in itself?

Decision of 9 May 2019 - BVerwG 1 C 14.19 (uploaded on 8 May 2020)

Decision to suspend proceedings and request for a preliminary ruling on legal questions concerning the scope of Directive 2008/115/EC

Headnotes

A preliminary ruling of the Court of Justice of the European Union is obtained on the following questions in accordance with article 267 TFEU:

1. a) Does an entry ban issued against a third-country national for purposes "not related to migration" come within the scope of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ L 348 p. 98), at any rate if the Member State has not made use of the option under article 2 (2) (b) of that Directive?

b) If question 1. a) is answered in the negative: Does such an entry ban not come under Directive 2008/115/EC if the third-country national is already staying illegally regardless of an expulsion order issued against him, to which the entry ban is linked, and therefore in principle comes within the scope of the Directive?

c) Do entry bans issued for purposes "not related to migration" include entry bans issued in connection with an expulsion ordered for reasons of public security and order (in this case: solely on general preventive grounds with the objective of combating terrorism)?

2. If question 1 is answered to the effect that the present entry ban does come within the scope of Directive 2008/115/EC:

a) Does the administrative annulment of the return decision (in this case: the deportation warning) have the result that an entry ban, within the meaning of article 3 no.6 of Directive 2008/115/EC, ordered at the same time becomes unlawful?

b) Does this legal consequence arise even if the administrative expulsion order preceding the return decision is (or has become) legally binding?

Review of grounds of inadmissibility in asylum law also has priority in actions for enhancement of subsidiary protection status

Headnotes

1. If there are indications to believe that an application for asylum is inadmissible pursuant to section 29 (1) no. 2 to 5 AsylG, an administrative court may grant an action for a grant of international protection only if the requirements of the ground of inadmissibility in question are absent. This applies even if the Federal Office for Migration and Refugees has decided on the merits of the application.

2. The ground of inadmissibility provided in section 29 (1) no. 4 and section 27 AsylG (safety elsewhere in another third country) implements the concept of the "first country of asylum" under EU law within the meaning of Directive 2013/32/EU. It provides that an application for asylum is inadmissible if the country under consideration is not an EU Member State and differs from the country of origin of the person concerned (for stateless persons: the country of habitual residence), and if that country is willing to readmit the person concerned and confers safety on that person in conformity with the requirements of section 27 AsylG in conjunction with article 35 of Directive 2013/32/EU.

Judgment of 11 April 2019 - BVerwG 3 C 14.17 (uploaded on 24 April 2020)

Withdrawal of the driving licence following a violation of the separation requirement by an occasional user of cannabis

Headnotes

1. In the case of an occasional user of cannabis who, for the first time, drove a motor vehicle under the influence of cannabis which may impair his driving safety, the driver licensing authority may as a rule not assume, without further clarification, that he is unfit to drive and immediately withdraw his driving licence. In such cases, the driver licensing authority is obliged to decide at its discretion in accordance with legal obligation whether to obtain a medical-psychological expert report pursuant to section 46 (3) in conjunction with section 14 (1) third sentence FeV.

2. An occasional user of cannabis does not separate the use of cannabis and driving a motor vehicle in accordance with no. 9.2.2 of Annex 4 to the Driver Licensing Ordinance if there is a possibility that the use of cannabis may impair his driving safety. Such a possibility can still be assumed, even taking into account the recommendation by the Limit Value Commission (Grenzwertkommission) of September 2015, if a concentration of tetrahydrocannabinol (THC) of 1ng/ml or more is found in the blood serum of the person concerned.

Judgment of 29 March 2019 - BVerwG 9 C 4.18 (uploaded on 29 January 2020)

Obligation of an organiser to pay fees for special police efforts made at a high-risk event

Headnotes

1. Fulfilling the tax liability, as determined by the ability to pay principle, does not entitle to free use of state benefits, the provision of which is subject to specific attribution. Anyone making particular use of a public good (in this case state security precautions) for the purpose of making a profit, may in principle be charged a fee for this.

2. A provision of federal state law (here section 4 (4) BremGebBeitrG) which, in order to cover the additional expenses, imposes a fee on the organiser of a major profit-oriented event foreseeably requiring the deployment of additional police forces in territorial and timely connection with such event as a result of experience predicting acts of violence, is in principle consistent with the tax state principle (Steuerstaatsprinzip; article 104a et seqq. GG).

3. Such a fee, which is not claimed from the organiser as the person causing a disturbance of public security but exclusively as the beneficiary of an increased police presence, does not conflict with police law. However, in order to avoid an impermissible excess cover, one must avoid "double billing" to both the organiser and to the person causing the disturbance.

4. The organiser's fee is in compliance with article 12 (1) GG if, taking into account the nature of the event, such fee is regularly in a reasonable relation to the economic result that the organiser can achieve, also thanks to the increased use of police forces.

5. There is no need for a tax-financed deduction from chargeable expenses, even when taking into account the public interest in preventing threats, if the additional security effort is required exclusively as a result of a profit-oriented private event.

6. With respect to the requirement of specificity of the provision, a fee with the direct purpose of covering expenses does not necessarily require the fee rate to be determined in the constituent elements of the provision. Sufficient specificity may also be achieved by stipulating rules for the assessment of such expenses.

Judgment of 28 March 2019 - BVerwG 1 C 9.18 (uploaded on 28 January 2020)

Right of residence of a Union citizen's spouse despite termination of marital cohabitation

Headnotes

1. The derived right of residence of the third-country national spouse of a Union citizen entitled to freedom of movement pursuant to section 2 (1) FreizügG/EU in conjunction with article 3 (1) of Directive 2004/38/EC does not depend on the continued existence of marital cohabitation. To meet the requirement that the third-country national must accompany the Union citizen within the meaning of section 3 (1) FreizügG/EU in conjunction with article 3 (1) of Directive 2004/38/EC, it is sufficient following termination of marital cohabitation that both spouses are simultaneously resident in the host Member State (CJEU, judgment of 16 July 2015 - C-218/14, Singh - para. 54).

2. If a Union citizen leaves the federal territory following termination of marital cohabitation, the derived right of residence of the third-country national spouse under EU law expires (CJEU, judgment of 16 July 2015 - C-218/14, Singh - para. 58).

3. If the Union citizen later returns to the federal territory, the third-country national spouse remaining here can again claim a derived right of residence under EU law, even if the spouses continue to live apart.

Decision of 27 March 2019 - BVerwG 6 C 6.18 (uploaded on 23 April 2020)

Request for a preliminary ruling seeking clarification on the obligation to accept euro banknotes

Headnotes

1. Section 14 (1) second sentence BBankG provides for an obligation on the part of public bodies to accept euro banknotes in the fulfilment of statutorily imposed payment obligations. Exceptions may not be well based on grounds of administrative practicability or cost saving, but require an authorisation under federal law.

2. Whether section 14 (1) second sentence BBankG is consistent with the exclusive competence that the European Union enjoys in the area of monetary policy (article 2 (1) in conjunction with article 3 (1) (c) TFEU), whether article 128 (1) third sentence TFEU or other provisions of applicable substantive EU law contain a prohibition precluding public bodies of a Member State from refusing fulfilment of a statutorily imposed payment obligation in euro banknotes and whether section 14 (1) second sentence BBankG can be applied to the extent to which and for so long as the European Union has not made use of the exclusive competence it may enjoy, needs to be clarified by the Court of Justice of the European Union.

A preliminary ruling of the Court of Justice of the European Union is obtained on the following questions:

1. Does the exclusive competence that the European Union, pursuant to article 2 (1) TFEU, in conjunction with article 3 (1) (c) TFEU, enjoys in the area of monetary policy for the Member States whose currency is the euro preclude a legal act of one of those Member States that provides for an obligation on the part of public bodies of the Member State to accept euro banknotes in the fulfilment of statutorily imposed payment obligations?

2. Does the status as legal tender of banknotes denominated in euro, as established in article 128 (1) third sentence TFEU, article 16 (1) third sentence of Protocol (No 4) on the statute of the European System of Central Banks and of the European Central Bank and article 10 second sentence of Council Regulation (EC) No 974/98 of 3 May 1998 on the introduction of the euro contain a prohibition precluding public bodies of a Member State from refusing fulfilment of a statutorily imposed payment obligation in such banknotes, or does EU law leave room for provisions that exclude payment in euro banknotes for certain statutorily imposed payment obligations?

3. If question 1 is answered in the affirmative and question 2 is answered in the negative: Can a legal act of a Member State whose currency is the euro which is adopted in the context of the European Union's exclusive competence in the area of monetary policy be applied to the extent to which, and for so long as, the European Union has not made use of its competence?

Ineffective withdrawal of asylum application in Dublin procedure

Headnotes

1. An applicant who files an application for protection asserting risks relating to the country of destination which by their nature are objectively capable of establishing a recognition of entitlement to asylum or a grant of international protection (substantive asylum application within the meaning of section 13 (1) AsylG) must be referred to the asylum procedure conducted by the Federal Office. The applicant has no option of choosing between an assessment by the foreigners authority and an assessment by the Federal Office (confirmation of the jurisprudence on section 13 (1) AsylVfG, old version, see BVerwG, judgment of 9 June 2009 - 1 C 11.08 - BVerwGE 134, 124 para. 34).

2. If an asylum applicant withdraws an application for international protection while maintaining an application for a declaration on the existence of national deportation bans under section 60 (5) and (7) first sentence AufenthG, the effectiveness of the withdrawal presupposes a statement that the still-maintained request for protection from deportation is not founded on reasons that are covered by international protection (refugee and subsidiary protection).

3. The effectiveness of the withdrawal of an asylum application is to be decided, for purposes of the Dublin procedure, by the Member State that conducts that procedure, in accordance with the national laws of that state.

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