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The 2020 decision explains only that judges cannot grant subsidiary protection when the risk density is less than 0.125%. But the 2011 decision allows lower courts to deny subsidiary protection simply because the risk density is less than 0.125%. In theory, the 2011 decision requires lower courts to always make a quantitative and qualitative assessment. However, the complexity of national case law on the minimum quantitative threshold issue confirms that it is generally appropriate for the ECJ to reserve judgment for a national court on the need for an appeal on this issue. Since the issue may now be treated as moot under domestic law, the Court may be inclined to follow the German government’s argument that the request for a preliminary ruling was merely the result of a misunderstanding between the national courts, which has now been resolved. In a surprising response to the request for a preliminary ruling, the Bundesverwaltungsgericht ruled in May 2020 that it attempted to clarify that its case law never actually established a “quantitative minimum threshold” for determining additional protection. In that 2011 decision, the Federal Administrative Court affirmed the superior administrative law judge’s decision denying supplemental protection without regard to qualitative factors. Because the Federal Administrative Court did not expressly reverse its 2011 decision, however, it is likely that the lower courts will continue to rely on the quantitative minimum threshold.

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