CURIA - Documents 5 of 10 https://curia.europa.eu/juris/document/document_print.jsf?docid=242... ‘(1) A foreign national shall be eligible for subsidiary protection where there are serious and substantial grounds for believing that he or she is at risk of suffering serious harm in his or her country of origin. Serious harm consists of: 1. the death penalty or execution; 2. torture or inhuman or degrading treatment or punishment; or 3. serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict. … (3) Paragraphs 3c to 3e shall apply mutatis mutandis. Persecution, protection against persecution or the well-founded fear of persecution is replaced by the risk of serious harm, protection against serious harm and the real risk of serious harm; refugee status is replaced by subsidiary protection.’ The facts in the main proceedings and the questions referred for a preliminary ruling 12 CF and DN are two Afghan civilians from the province of Nangarhar. The Federal Office for Migration and Refugees rejected their asylum applications. Actions brought by the applicants before the administrative courts of Karlsruhe and Freiburg (Germany) were unsuccessful. 13 CF and DN brought an appeal before the Verwaltungsgerichtshof Baden-Württemberg (Higher Administrative Court, Baden-Württemberg, Germany), requesting that they be granted subsidiary protection in accordance with Paragraph 4 of the AsylG. 14 In that context, that court seeks clarification of the criteria to be applied for the purposes of granting subsidiary protection in cases of a serious and individual threat to a civilian’s life or person by reason of ‘indiscriminate violence in situations of … armed conflict’, within the meaning of Article 15(c), read in conjunction with Article 2(f) of Directive 2011/95. 15 Despite the clarification provided in its judgment of 17 February 2009, Elgafaji (C‑465/07, EU:C:2009:94, paragraph 35), the Court has not yet ruled on the criteria to be applied in determining the level of violence necessary in order to establish the existence of a serious and individual threat by reason of indiscriminate violence in situations of armed conflict. Furthermore, the case-law handed down by other courts in this area is inconsistent. Whereas some have conducted a comprehensive assessment based on all the circumstances of the case, others have predicated their approach on an analysis based primarily on the number of civilian casualties. 16 In particular, the referring court observes that, in order to find that a person who is not specifically targeted, by reason of factors particular to his or her personal circumstances, faces a serious and individual threat, the case-law of the Bundesverwaltungsgericht (Federal Administrative Court, Germany) on the first sentence of Paragraph 4(1) and point 3 of the second sentence of Paragraph 4(1) of the AsylG, which transposes Article 15(c) of Directive 2011/95, read in conjunction with Article 2(f) of that directive, diverges significantly from the case-law based on a comprehensive assessment of the particular circumstances of each individual case, as applied by the courts of other Member States and by the European Court of Human Rights. 17 According to the Bundesverwaltungsgericht (Federal Administrative Court), before any finding of serious and individual threats can be made, it is necessary to conduct a quantitative assessment of the ‘risk of death and injury’, expressed by the ratio between the number of casualties in the relevant area and the total number of individuals composing the population of that area, which must reach a certain minimum threshold. If that threshold is not reached, there is no need for any further assessment of the level of risk, and a serious and individual threat cannot be found to exist even on 05/10/2021, 12:08