Provisional text

OPINION OF ADVOCATE GENERAL

EMILIOU

delivered on 27 June 2024 (1)

Joined Cases C‑123/23 and C‑202/23 [Khan Yunis and Baadba] (i)

N.A.K.,

E.A.K.,

Y.A.K. (C‑123/23)

M.E.O. (C‑202/23)

v

Bundesrepublik Deutschland

(Request for a preliminary ruling from the Verwaltungsgericht Minden (Administrative Court, Minden, Germany))

(Reference for a preliminary ruling – Area of freedom, security and justice – Asylum – Directive 2013/32/EU – Common procedures for granting and withdrawing international protection – Application for international protection – Grounds of inadmissibility – Article 33(2)(d) and Article 40 – Subsequent application for international protection – Circumstances under which a subsequent application can be declared inadmissible – Possibility to declare inadmissible a subsequent application lodged after an asylum procedure regarding a previous application of the person concerned was closed by another Member State)

I.      Introduction

1.        The present requests for a preliminary ruling concern the interpretation of the ground of inadmissibility contained in Article 33(2)(d) of Directive 2013/32/EU. (2) That provision entitles Member States to declare ‘subsequent applications’ inadmissible, in certain conditions. Pursuant to Article 2(q) of that directive, ‘subsequent applications’ are applications for international protection lodged ‘after a final decision has been taken on a previous application’ brought by the same person.

2.        Both provisions are silent as to whether that ground of inadmissibility can be applied only in the context where both applications are assessed by the same Member State or also in a situation involving several Member States, where the previous asylum procedure was conducted by a Member State (Member State A) other than the one before which the ‘subsequent application’ is lodged (Member State B).

3.        Under German law, the Bundesamt für Migration und Flüchtlinge (Federal Office for Migration and Refugees, Germany; ‘the Federal Office’) can, if certain criteria are met, declare inadmissible an application for international protection lodged before it ‘following the unsuccessful conclusion of an asylum procedure’, concerning the same applicant, in a different Member State. The Verwaltungsgericht Minden (Administrative Court, Minden, Germany) wishes to know whether such a provision is compatible with Article 33(2)(d) of Directive 2013/32, read in conjunction with Article 2(q) thereof.

4.        The Court has already been asked to provide a ruling on that issue. (3) However, it has, on previous occasions, limited its findings to the particular situations where the final decision on a previous application of the person concerned had been adopted by a third State or a Member State that, although implementing Regulation (EU) No 604/2013, (4) was not bound by Directive 2013/32 nor Directive 2011/95/EU (5) (namely, Norway and Denmark). The present cases invite the Court to consider the application of the ground of inadmissibility contained in Article 33(2)(d) of Directive 2013/32 in the scenario where applications for international protection are successively lodged by the same person in different Member States that fully participate in the Common European Asylum System.

II.    Legal framework

A.      European Union law

5.        Article 2(q) of Directive 2013/32 defines the terms ‘subsequent application’ as meaning ‘a further application for international protection made after a final decision has been taken on a previous application, including cases where the applicant has explicitly withdrawn his or her application and cases where the determining authority has rejected an application following its implicit withdrawal in accordance with Article 28(1)’ of that directive.

6.        Article 33 of Directive 2013/32, entitled ‘Inadmissible applications’, provides:

‘1.      In addition to cases in which an application is not examined in accordance with [the Dublin III Regulation], Member States are not required to examine whether the applicant qualifies for international protection in accordance with Directive [2011/95] where an application is considered inadmissible pursuant to this Article.

2.      Member States may consider an application for international protection as inadmissible only if:

…

(d)      the application is a subsequent application, where no new elements or findings relating to the examination of whether the applicant qualifies as a beneficiary of international protection by virtue of Directive [2011/95] have arisen or have been presented by the applicant; or

…’

7.        Pursuant to Article 40 of that directive, entitled ‘Subsequent application’:

‘1.      Where a person who has applied for international protection in a Member State makes further representations or a subsequent application in the same Member State, that Member State shall examine these further representations or the elements of the subsequent application in the framework of the examination of the previous application or in the framework of the examination of the decision under review or appeal, in so far as the competent authorities can take into account and consider all the elements underlying the further representations or subsequent application within this framework.

2.      For the purpose of taking a decision on the admissibility of an application for international protection pursuant to Article 33(2)(d), a subsequent application for international protection shall be subject first to a preliminary examination as to whether new elements or findings have arisen or have been presented by the applicant which relate to the examination of whether the applicant qualifies as a beneficiary of international protection by virtue of Directive [2011/95].

3.      If the preliminary examination referred to in paragraph 2 concludes that new elements or findings have arisen or been presented by the applicant which significantly add to the likelihood of the applicant qualifying as a beneficiary of international protection by virtue of Directive [2011/95], the application shall be further examined in conformity with Chapter II. Member States may also provide for other reasons for a subsequent application to be further examined.

…

5.      When a subsequent application is not further examined pursuant to this Article, it shall be considered inadmissible, in accordance with Article 33(2)(d).

…

7.      Where a person with regard to whom a transfer decision has to be enforced pursuant to [the Dublin III Regulation] makes further representations or a subsequent application in the transferring Member State, those representations or subsequent applications shall be examined by the responsible Member State, as defined in that Regulation, in accordance with this Directive.’

B.      German law

8.        The main substantive and procedural rules which govern asylum procedures are laid down in the Asylgesetz (Law on Asylum) of 26 June 1992 (BGBl. 1992 I, p. 1126), as published on 2 September 2008 (BGBl. 2008 I, p. 1798), in the version applicable to the dispute in the main proceedings (‘the AsylG’).

9.        Paragraph 29 of the AsylG, entitled ‘Inadmissible applications’, states:

‘(1)      An application is inadmissible where:

…

5.      in the case of a subsequent application pursuant to Paragraph 71 or a second application under Paragraph 71a, a further asylum procedure need not be conducted.’

10.      Paragraph 71a of the AsylG, entitled ‘Second application’, states:

‘(1)      If the foreign national makes an asylum application (second application) in the federal territory following the unsuccessful conclusion of an asylum procedure in a safe third country (Paragraph 26a) in which [EU] law on the responsibility for conducting asylum procedures applies or which has concluded an international agreement thereon with the Federal Republic of Germany, a further asylum procedure shall be conducted only if the Federal Republic of Germany is responsible for conducting the asylum procedure and the conditions of Paragraph 51(1) to (3) of the Verwaltungsverfahrensgesetz [(Law on administrative procedure), as published on 23 January 2003 (BGBl. 2003 I, p. 102) (‘the VwVfG’)] are met are met; this shall be examined by the Federal Office.’

11.      The VwVfG contains general provisions regarding the administrative procedures of public authorities. Paragraph 51(1) to (2) of that law states:

‘(1)      An administrative body must, at the request of the person concerned, decide that an administrative measure which is no longer open to challenge be annulled or modified, if:

1.      the factual or legal position on which the measure was based has subsequently changed in favour of the individual concerned;

2.      new evidence has come to light which would have led to a more favourable decision for the individual concerned;

3.      in accordance with Paragraph 580 of the Zivilprozessordnung [(Code of Civil Procedure)] reasons exist to reopen the procedure.

(2)      The request is only admissible if, without committing a serious fault, the person concerned was not able to rely on the ground for re-examination in the context of the prior procedure, including by appealing the administrative measure.’

III. Facts, national proceedings and the questions referred

A.      Case C‑123/23

12.      The applicants in the main proceedings, N.A.K, E.A.K. and Y.A.K., are stateless persons of Palestinian origin who used to live in the Gaza Strip. N.A.K, born in 1985, is the mother of E.A.K and Y.A.K.

13.      According to their declarations, the applicants entered the Federal Republic of Germany on 11 November 2019 and sought asylum on 15 November 2019. Their applications were formally registered by the Federal Office on 22 November 2019.

14.      N.A.K. stated that she had left the Gaza Strip with her children in 2018, following persecution by Hamas because of her husband’s political activities, and that they had travelled to Germany via, inter alia, Spain and Belgium. They had lived in Belgium for about a year and had filed applications for international protection there.

15.      N.A.K. also indicated that her husband had entered the Federal Republic of Germany in 2014 and that he had applied for international protection there. However, his application for international protection had been rejected by decision of 31 March 2017.

16.      The Federal Office issued a take back request, in application of Articles 23, 24 and 25 of the Dublin III Regulation, to the Spanish competent authorities. By letter of 28 November 2019, those authorities rejected that request, indicating that they were not responsible for examining the applications of N.A.K. and her children.

17.      The Federal Office did not issue a take back request to the Belgian authorities. However, it did issue a request for information to those authorities, in application of Article 34 of the Dublin III Regulation, which aims to facilitate information sharing between the Member States.

18.      In their response, dated 5 March 2021, the Belgian authorities indicated that N.A.K. had applied for international protection in Belgium on 21 August 2018. However, her application had been rejected on 5 July 2019, after an examination on the merits. Those authorities indicated that, during the asylum procedure before them, it had not been credibly demonstrated that N.A.K. was in danger of persecution or serious harm in her country of origin. Furthermore, they had determined that N.A.K. could seek protection or assistance from the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), upon her return to the Gaza Strip.

19.      The Belgian authorities further indicated that N.A.K. had not appealed that decision, which had therefore become final.

20.      By decision of 25 May 2021, the Federal Office rejected the applications of N.A.K. and her children as inadmissible and ordered their removal to the Gaza Strip.

21.      In particular, the Federal Office considered that, pursuant to Paragraph 71a(1) of the AsylG, it was not necessary to carry out a new asylum procedure in respect of the applicants in the main proceedings. Indeed, their previous applications for international protection had been rejected by the Belgian authorities and there were no grounds for reopening the procedure pursuant to Paragraph 51(1) to (3) of the VwVfG. In that regard, the Federal Office noted that the factual and legal circumstances of N.A.K. and her children had not changed and that they had not submitted new evidence.

22.      The applicants in the main proceedings brought an action before the Verwaltungsgericht Minden (Administrative Court, Minden), the referring court, against that decision on 9 June 2021. N.A.K. argued that she would face serious discrimination in the Gaza Strip, since violence against women, particularly if divorced or single, was socially acceptable there. Furthermore, access to medical care and work was limited, and the precarious conditions in the Gaza Strip would not allow her and her two children to meet their basic living expenses. N.A.K. added that that she had no family support in the Gaza Strip, nor could it be expected that UNRWA would provide adequate support to her and her children. The authorities in Belgium had failed to take into account those elements. She also claimed that it was de facto impossible for her and her children to return to the Gaza Strip and place themselves under the protection of UNRWA. In the light of those elements, she argued that they must be granted refugee status.

23.      By order of 31 August 2021, the referring court ordered the suspensive effect of N.A.K.’s action against the order of removal contained in the contested decision. It concluded, with reference to the observations submitted in Case C‑8/20, L.R. (Application for asylum rejected by Norway), that there were doubts as to whether Paragraph 71a of the AsylG was compatible with EU law.

24.      In the light of those circumstances, the Verwaltungsgericht Minden (Administrative Court, Minden) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must Article 33(2)(d) of Directive 2013/32, read in conjunction with Article 2(q) of that directive, be interpreted as precluding legislation of a Member State under which an application for international protection lodged in that Member State is to be rejected as inadmissible if an application for international protection previously lodged in another Member State has been finally rejected by that other Member State as unfounded?’

B.      Case C‑202/23

25.      The applicant in the main proceedings, M.E.O., is a Lebanese national, born in 1989. He entered the Federal Republic of Germany on 2 March 2020 and sought asylum on the same date. His application was registered by the Federal Office on 30 April 2020. After a Eurodac search by the Federal Office produced a Category 1 hit for Poland, the Polish authorities agreed, by letter of 29 April 2020, to take M.E.O. back.

26.      By decision of 25 June 2020, the Federal Office rejected M.E.O’s application as inadmissible and ordered his removal to Poland. The Federal Office stated that Poland was responsible for conducting the asylum procedure.

27.      On 6 July 2020, M.E.O. brought an action against that decision and applied for interim relief before the Verwaltungsgericht Düsseldorf (Administrative Court, Düsseldorf, Germany). That court dismissed that application.

28.      At the start of November 2020, the Federal Office informed the Polish authorities that, although the deadline for transferring M.E.O. to Poland was still running, it was actually not possible to proceed to the transfer because M.E.O. had absconded.

29.      By letter of 2 February 2021, the Federal Office annulled its decision of 25 June 2020, on the ground that the deadline for transferring M.E.O. had expired. Following a request for information of the Federal Office, the Polish authorities indicated, by letter of 28 April 2021, that the asylum procedure in Poland had been discontinued on 20 April 2020. That procedure could have been resumed by M.E.O. up until January 2021 (that is to say, over the course of a period of nine months starting on the date of the decision to discontinue the examination), but it was now too late to resume it.

30.      By decision of 14 July 2021, the Federal Office rejected as inadmissible the asylum application made by M.E.O. and ordered his removal to Lebanon. The Federal Office explained that, under Paragraph 71(a)(1) of the AsylG, no further asylum procedure was to be conducted in Germany, since the asylum procedure in Poland had been discontinued, without M.E.O. obtaining international protection there. In that regard, the Federal Office noted that the factual and legal situation of M.E.O. had not changed from that described in his previous application in Poland, nor had new evidence been presented.

31.      On 27 July 2021, M.E.O. brought an action against that decision before the Verwaltungsgericht Minden (Administrative Court, Minden), the referring court.

32.      By order of 31 August 2021, the referring court ruled that the action brought by M.E.O. against the order of removal contained in the decision of the Federal Office had suspensory effect. Furthermore, it indicated that it had doubts as to the interpretation of the concept of ‘subsequent application’ and the compatibility of Paragraph 71(a) of the AsylG with EU law.

33.      In the light of those circumstances, the Verwaltungsgericht Minden (Administrative Court, Minden) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Is Article 33(2)(d) of Directive 2013/32 in conjunction with Article 2(q) thereof to be interpreted as precluding a provision of a Member State under which an application for international protection made in that Member State is to be rejected as inadmissible if the applicant previously made an application for international protection in another Member State and the procedure was discontinued by the other Member State because the applicant abandoned the application in that Member State?

(2)      If Question 1 is to be answered in the negative:

Is Article 33(2)(d) of Directive 2013/32 in conjunction with Article 2(q) thereof to be interpreted as precluding a provision of a Member State under which an application for international protection made in that Member State is to be rejected as inadmissible if the applicant previously made an application for international protection in another Member State and the procedure was discontinued by the other Member State because the applicant abandoned the application in the other Member State, even though the asylum procedure in the other Member State can still be reopened by the other Member State if the applicant makes an application to that effect in the other Member State?

(3)      If Question 2 is to be answered in the affirmative:

Does EU law stipulate what is the relevant date, in connection with the decision on an application for international protection, for determining whether an asylum procedure previously discontinued in another Member State can still be reopened or is this a matter governed solely by national law?

(4)      If Question 3 is to be answered to the effect that EU law does contain such stipulations:

What is the relevant date under EU law, in connection with the decision on an application for international protection, for determining whether an asylum procedure previously discontinued in another Member State can still be reopened?’

IV.    The procedure before the Court

34.      The requests for a preliminary ruling, dated 28 October 2022, were registered at the Court of Justice on 1 March 2023 (for Case C‑123/23) and 28 March 2023 (for Case C‑202/23).

35.      By decision of the President of the Court of 10 May 2023, Cases C‑123/23 and C‑202/23 were joined for the purposes of the written and oral procedure and the judgment.

36.      The Federal Republic of Germany, the French Government, as well as the European Commission, submitted written observations. The Federal Republic of Germany and the Commission were represented at the hearing which took place on 29 February 2024.

V.      Analysis

37.      One can easily imagine that, to maximise his or her chances of obtaining international protection, an asylum seeker may want to lodge applications for international protection in more than one Member State. The EU legislature, well aware of the importance of avoiding blockages in the system as a result of the obligation on Member State authorities to examine multiple applications by the same applicant, and in order to avoid ‘forum shopping’, (6) has included, in the Dublin III Regulation, specific provisions designed to confine the treatment of applications made by the same person to a single Member State (7) and, thereby, limit ‘secondary movements’. (8) Essentially, it has put in place a ‘one-stop shop’ mechanism, whose purpose is to discourage asylum seekers from instigating several asylum procedures in different Member States (Member States A, B, and so on) at the same time, or successively, by initiating an asylum procedure in Member State B, C, and so on, once an asylum procedure is closed or discontinued in Member State A.

38.      I will begin by describing the provisions of the Dublin III Regulation that the EU legislature has expressly adopted to prevent that scenario from occurring (A). I will then examine whether it is possible for the Member States to supplement that solution by making it possible, for their competent authorities and courts, to declare inadmissible, in certain conditions, an application lodged after an asylum procedure regarding a previous application of the same person has been conducted by another Member State, in application of Article 33(2)(d) of Directive 2013/32, read in conjunction with Article 2(q) thereof (B). Indeed, the main question raised by the present cases concerns the applicability of those provisions in a situation involving different Member States, namely a person applies for asylum in Member State B (here, Germany), whilst an asylum procedure has already been conducted, with regard to a previous application of the same person, in Member State A (here, respectively, Belgium and Poland).

A.      ‘Take back procedures’: the EU legislature’s express solution

39.      With a view to discouraging the making of applications for international protection by the same person in different Member States, the EU legislature has adopted, in the Dublin III Regulation, provisions to the effect that such applications shall be examined by a single Member State (‘the Member State responsible’). Specifically, in Article 18(1)(b) to (d) of that regulation, it is indicated that the Member State responsible is obliged to ‘take back’ an applicant who has lodged an application in a different Member State. (9)

1.      Brief overview of the ‘take back procedure’

40.      The ‘take back procedure’ is detailed in Articles 23 to 25 of the Dublin III Regulation. That procedure begins with the issuing of a ‘take back request’ by the ‘requesting Member State’ (that is to say, the Member State where the applicant is located) to the Member State responsible. If successfully conducted, it culminates in the transfer of the applicant from the requesting Member State to that other Member State. The modalities and time limits for the transfer are detailed in Article 29 of that regulation.

41.      I gather from those provisions that the situations in which a ‘take back request’ can be issued by the requesting Member State include, first, that where a third-country national or a stateless person applies for asylum in that Member State while his or her application is under examination by the Member State responsible or after having withdrawn his or her application before that Member State (Article 18(b) and (c) of the Dublin III Regulation) and, second, that where he or she does so after his or her application has been rejected by the Member State responsible (Article 18(d) of that regulation). I understand that the first situation corresponds to the facts in the main proceedings of Case C‑202/23, since the asylum procedure in Poland, regarding a previous application of M.E.O., was still ongoing when he ‘made’ his application before the Federal Office. However, that procedure was discontinued, in application of Article 28(1) of Directive 2013/32, a few days later, on the ground that M.E.O. had implicitly withdrawn his previous application before the Polish authorities. The second situation covers the facts in the main proceedings of Case C‑123/23.

42.      It follows that, in both scenarios, the Federal Office had an ‘obvious’ solution available to it, to avoid having to examine the applications lodged by N.A.K. and her children, on the one hand, and M.E.O., on the other hand. Indeed, it could have issued a ‘take back request’ to, respectively, Poland and Belgium and organised the transfer of those persons to those Member States. In fact, the Federal Office issued such a request in Case C‑202/23. Prima facie, it may, therefore, seem unnecessary to allow Member States to rely on a different tool (namely, the ground of inadmissibility contained in Article 33(2)(d) of Directive 2013/32), in such circumstances.

43.      However, as I shall now explain (and as the facts in the main proceedings illustrate), there may be hurdles to the implementation of ‘take back procedures’. Furthermore, the EU legislature has made clear that Member States are not obliged to resort to such procedures.

2.      ‘Take back procedures’: a partial solution …

44.      ‘Take back procedures’ will not come to fruition in the following situations. First, the Member State where the applicant has made a ‘subsequent application’ (Member State B) may fail to comply with the deadline for issuing a ‘take back request’ to the Member State responsible (Member State A). (10) Where that is the case, Member State B becomes responsible for examining the ‘subsequent application’ of the person concerned in lieu of Member State A. (11) Second, assuming that the ‘take back request’ is issued timely by Member State B, the requested Member State (Member State A) may refuse to take back the person concerned, for example on the ground that it is not, in reality, the Member State responsible for examining it. (12) In fact, that is what happened in Case C‑123/23: the Federal Office first issued a take back request to the Spanish competent authorities, which rejected it, as they considered themselves not to be responsible for examining the applications of N.A.K. and her children, since those persons had, in the meantime, applied for asylum in Belgium and had their claims examined by the Belgian authorities. Third, even if Member State A accepts to take back the applicant, Member State B may nevertheless fail to transfer him or her back to Member State A, in compliance with the time limits set out in Article 29 of the Dublin III Regulation. In such a situation, Member State A shall be relieved of its obligation to take back the person concerned and responsibility shall be transferred to Member State B. (13) This is what happened in Case C‑202/23: the Federal Office did not succeed in transferring M.E.O. back to Poland within the applicable time limit (because he had absconded) and, thus, became responsible for examining his application.

45.      In addition, the Member States are not obliged to resort to take back procedures. Indeed, Article 23(1) of the Dublin III Regulation merely indicates that Member State B ‘may request’ (14) Member State A to take back the person concerned. Furthermore, the ‘discretionary clause’ laid down in Article 17(1) of that regulation gives each Member State permission to decide to examine ‘an application for international protection lodged with it’. It appears from the reference for a preliminary ruling in Case C‑123/23 that, after its ‘take back request’ to the Spanish authorities was rejected, the Federal Republic of Germany declared itself responsible for examining the applications of N.A.K. and her children lodged before it, on the basis of Article 17(1) of the Dublin III Regulation. That Member State explained at the hearing that the reason why it had relied on that provision was that, by that time, it was, in any case, too late for it to timely issue another ‘take back request’ to the Belgian authorities.

46.      In all the situations which I have just described, responsibility for examining an application may, therefore, switch (and, in the cases at hand in the main proceedings, it in fact did) from the Member State before which the same person concerned had previously applied for asylum, Member State A (in casu, Belgium and Poland), to that before which such an application has been lodged, Member State B (in casu, Germany).

47.      It is within that context that one must consider the only question in Case C‑123/23 and the four questions in case C‑202/23.

B.      Article 33(2)(d) of Directive 2013/32, read in conjunction with Article 2(q) thereof: a supplementary tool?

48.      In the sections that follow, I shall provide the reasons why I believe that Article 33(2)(d) of Directive 2013/32, read in conjunction with Article 2(q) thereof, must be interpreted as meaning that they do not exclude, in the situation where Member State B (in casu, Germany) becomes the Member State responsible for examining the application made before it in lieu of Member State A, that the authorities of Member State B may reject as inadmissible a ‘subsequent application’ lodged before them, even though the asylum procedure regarding a previous application of the same person was conducted not by those authorities, but by those of Member State A (2).

49.      Before I do so, however, I shall start by explaining why I consider that, regardless of whether those provisions apply in such an inter-Member State context, an application such as that made by M.E.O. in Case C‑202/23 cannot, at any rate, be rejected as inadmissible in application of Article 33(2)(d) of Directive 2013/32. Indeed, in order for the ground of inadmissibility contained in that provision to apply, the first prerequisite is that the application must be a ‘subsequent application’, within the meaning of Article 2(q) of that directive, which presupposes that the authorities of Member State A have adopted a ‘final decision’ regarding a previous application of the person concerned. As I will explain, an application such as that lodged by M.E.O. fails to meet that requirement (1).

1.      The situation at hand in case C‑202/23: the need for a ‘final decision’ regarding a previous application (Article 2(q) of Directive 2013/32)

50.      The referring court states that M.E.O.’s application before the Federal Office is dated 2 March 2020 and that it was registered on 30 April 2020. It also indicates that the asylum procedure in Poland, concerning a previous application of M.E.O., was discontinued, in application of Article 28(1) of Directive 2013/32, (15) on 20 April 2020, on the ground that M.E.O. had implicitly withdrawn his application. However, that procedure could have been resumed up until January 2021.

51.      In that regard, I note that Article 2(q) of Directive 2013/32 provides that the terms ‘subsequent application’ cover the scenario where a further application is made ‘after a final decision has been taken on a previous application, including … cases where the determining authority has rejected an application following its implicit withdrawal in accordance with Article 28(1)’ thereof. Thus, the mere fact that the asylum procedure regarding a previous application of the person concerned was closed on the basis of that article and that such an application was implicitly withdrawn by that person is not, in and of itself, an obstacle to an application thereafter presented by him or her to be regarded as a ‘subsequent application’, within the meaning of that provision.

52.      However, as the Commission rightly points out, in such a scenario, for an application to come within the scope of the definition of ‘subsequent application’, contained in Article 2(q) of Directive 2013/32, the decision to discontinue the previous asylum procedure must, first, have already been adopted by Member State A by the time that the person concerned makes his or her application in Member State B. (16) Second, that person must no longer have the opportunity of resuming that procedure (otherwise, the decision cannot be regarded as final).

53.      I agree with the Commission that an application such as that made by M.E.O. before the Federal Office fails to meet that first requirement. Indeed, when M.E.O. lodged his application before the Federal Office on 2 March 2020, the decision of the Polish authorities to discontinue the asylum procedure regarding his previous application (which is dated 20 April 2020) had not even been adopted yet.

54.      In that regard, the referring court has doubts as to whether the date on which M.E.O made his application in Germany is the relevant one. According to that court, the relevant date could also be that on which that application was registered or that on which the Federal Office became responsible for examining it (both of which are subsequent to the adoption of the decision of the Polish authorities to discontinue the asylum procedure pending before them). I note, however, that Article 2(q) of Directive 2013/32 states that an application can only be regarded as a ‘subsequent application’ if such an application is ‘made after a … decision has been taken on a previous application of the same person’. (17) I understand the term ‘made’ as referring to a moment which is distinct not only from that where that authority declares itself responsible for examining it but also from that on which the application is registered and as corresponding, in case C‑202/23, to the date of 2 March 2020 (the date indicated on M.E.O.’s application). Indeed, the act of ‘making’ an application for international protection entails no administrative formalities. (18) That interpretation results, in particular, from Article 6(1) of that directive which states that ‘when a person makes an application for international protection …, the registration shall take place no later than three working days after the application is made’.

55.      As regards the second requirement which I have mentioned in point 53 above, I am of the view that M.E.O.’s application before the Federal Office also fails to comply with that requirement because, when M.E.O. made that application, the procedure before the Polish authorities could still be resumed by him until 20 January 2021.

56.      In that regard, I recall that Article 28(1) of Directive 2013/32 must be read in conjunction with Article 28(2) thereof, which provides that Member States shall ensure that an applicant in respect of which a decision to discontinue the asylum procedure has been taken is entitled, during a period of at least nine months, to request that his or her case be reopened or to make a new application, and that such an application ‘shall not be subject to the procedure referred to in Articles 40 and 41. (19) Given that Articles 40 and 41 of Directive 2013/32 detail the procedure that applies to ‘subsequent applications’, it is clear to me that an application lodged before the end of that period of nine months or more (at a time when the asylum procedure in Member State A can still be resumed) cannot, under any circumstances, be regarded as a ‘subsequent application’, within the meaning of Article 2(q) thereof. (20)

57.      In the light of those elements, I propose the Court to answer the four questions in case C‑202/23 in the sense that the mere fact that the asylum procedure regarding a previous application for international protection of the person concerned was closed by a decision to discontinue it, adopted on the basis of Article 28(1) of Directive 2013/32, is not, in and of itself, an obstacle to an application thereafter presented by the same person being regarded as a ‘subsequent application’ within the meaning of Article 2(q) of that directive. However, such an application cannot be regarded as coming within the scope of that provision, and the ground of inadmissibility contained in Article 33(2)(d) of Directive 2013/32 cannot apply, if the decision to discontinue the asylum procedure regarding the previous application has not been adopted yet or if the person concerned still has the opportunity to resume that procedure. In that regard, Article 28(2) of that directive states that ‘Member States may provide for a time limit of at least nine months’, during which the procedure can be resumed. It is up to the Member States, in their national law, to decide what that time limit is, so long as it is not less than the nine-month minimum set by that provision.

58.      To be clear, if an asylum seeker applies for international protection in Member State B before the decision to discontinue the asylum procedure in Member State A has been adopted or before the time limit for resuming that procedure has expired, Member State B has no choice but to either resort to the ‘take back procedure’ detailed in the Dublin III Regulation or declare itself responsible for examining the application made before it (in application of Article 17(1) thereof) and proceed to a full examination on the merits of the applicant’s claims. (21)

2.      The situation at hand in case C‑123/23: the applicability of the ground of inadmissibility contained in Article 33(2)(d) of Directive 2013/32 in an inter-Member State context

59.      The situation at hand in case C‑123/23 is not characterised by the problem that I have identified in the previous section. The referring court indicates that, by the time that N.A.K. and her children applied for asylum before the Federal Office, the asylum procedure before Member State A (Belgium) in respect of them had been closed by a final, negative decision. Indeed, the Belgian authorities had rejected the claims of N.A.K. and her children in a decision against which there was no appeal. Those authorities had, therefore, adopted a ‘final decision’, within the meaning of Article 2(q) of Directive 2013/32, read in conjunction with Article 2(e) thereof, which provides that ‘“final decision” means a decision on whether the third-country national or stateless person be granted refugee or subsidiary protection status by virtue of Directive [2011/95] and which is no longer subject to a remedy’.

60.      Against that background, whether the Federal Republic of Germany, having declared itself responsible for examining the applications of N.A.K. and her children, (22) can rely apply the ground of inadmissibility contained in Article 33(2)(d) of Directive 2013/32 still depends on that provision, read in conjunction with Article 2(q) thereof, requiring that the previous application and the ‘subsequent application’ must have been presented in the same Member State.

61.      In order to explain why, in my view, those provisions do not impose such a requirement, I shall proceed to a textual, contextual and teleological interpretation of Article 33(2)(d) of Directive 2013/32, read in conjunction with Article 2(q) thereof.

(a)    Textual interpretation

62.      Article 33 of Directive 2013/32, which is entitled ‘Inadmissible applications’, introduces a list of exceptions to the default rule pursuant to which the competent authorities of the Member States are to examine applications for international protection on the merits. (23) It provides, in its second paragraph, that an application for international protection ‘may’ be considered inadmissible ‘only if’ one of the grounds listed in that paragraph applies. I understand from that provision, first, that Member States are not obliged to declare any application inadmissible. Second, Member States are not at liberty to provide additional grounds of inadmissibility in their legislation. (24)

63.      In those conditions, it is clear to me that the ground of inadmissibility contained in Article 33(2)(d) of that directive, which applies to ‘subsequent applications’, must be understood as both an optional and exhaustive ground for declaring such applications inadmissible. The applicability of that ground in a context involving several Member States that fully participate in the Common European Asylum System thus depends on whether the wording of Article 33(2)(d) of Directive 2013/32, read in conjunction with Article 2(q) thereof, is sufficiently broad to accommodate that possibility.

64.      In that regard, I note that Article 33(2)(d) of Directive 2013/32 does not indicate that the asylum procedure regarding a previous application by the person concerned, which has been closed by a final decision, must necessarily have been conducted by the same Member State as that in which that person subsequently applies for asylum. In fact, that provision contains two express conditions, which are, first, that the application be a ‘subsequent application’ and, second, that there be no ‘new elements or findings relating to the examination of whether the applicant qualifies as a beneficiary of international protection … have arisen or have been presented by the applicant’. It is silent as to where that asylum procedure must have been conducted – an issue that, in my view, relates to the first condition. Article 2(q) of that directive is equally equivocal in that regard.

65.      As I have already stated in the introduction above, the Court has interpreted the first condition laid out in Article 33(2)(d) of Directive 2013/32 as precluding an application from being regarded as a ‘subsequent application’ where it is lodged after an application of the same person was examined by a third State (Norway) or by a Member State (Denmark) bound by the Dublin III Regulation, but not by that directive nor Directive 2011/95. It has based that conclusion on the fact that the final decision regarding a previous application of the person concerned must have been adopted by a State bound by the latter directive. However, the Court has expressly indicated that its conclusion is ‘without prejudice to the separate question whether the concept of “subsequent application” applies to a further application for international protection made to a Member State after another Member State [that is bound by that directive] has rejected, by a final decision, a previous application’. (25) Accordingly, it has left open that question.

66.      I add that, as regards the second condition laid out in Article 33(2)(d) of Directive 2013/32, the Court has found, in a context where it was asked to rule on the meaning of the concept of ‘new element or findings’, within the meaning of Article 33(2)(d) and Article 40(2) and (3) of Directive 2013/32, that the situations in which that directive requires a ‘subsequent application’ to be considered admissible must be interpreted broadly. (26) In that regard, it has recalled that, save in the instances covered by the grounds listed in Article 33(2) of that instrument, the authorities of the Member States are required, as I have already explained in point 62 above, to examine applications for international protection on the merits. However, that judgment is of limited relevance to the issue raised by the present cases. Indeed, it cannot be deduced from those conclusions of the Court that a requisite which is not included expressis verbis in Article 33(2)(d) of Directive 2013/32 (namely, that an application can only be declared inadmissible as a ‘subsequent application’ if it is made in a Member State that has adopted a final decision regarding a previous application of the same person) and which relates not to the second, but to the first of the conditions laid down in that provision should indeed be read into it.

67.      I conclude this section by noting that the Court has already indicated, albeit in a specific (27) situation which did not concern Article 33(2)(d) of Directive 2013/32, but the corresponding provision of Directive 2005/85/EC, (28) which applied before Directive 2013/32 came into force, that an application made in a Member State after a previous identical application of the same person was rejected by a final decision in another (first) Member State, could be declared inadmissible by that second Member State. (29)

68.      In the light of those elements, I agree with the Federal Republic of Germany that the wording of Article 33(2)(d) and Article 2(q) of Directive 2013/32 is sufficiently broad to accommodate the possibility that the ground of inadmissibility contained in the first of those provisions applies in a context involving several Member States that fully participate in the Common European Asylum System. At the same time, I cannot conclude that such a possibility exists based on the wording of those provisions alone – which is why I shall now proceed to a contextual and teleological interpretation of those very provisions.

(b)    Contextual and teleological interpretation

69.      A contextual and teleological interpretation of Article 33(2)(d) and Article 2(q) of Directive 2013/32 supports, in my view, the conclusion that those provisions can apply where the final decision regarding a previous application of the person concerned was adopted by a Member State which fully participates in the Common European Asylum System but is other than that in which that person is currently seeking asylum.

70.      First, those provisions must be read in conjunction with Article 40 of Directive 2013/32, which details, in its paragraphs 2 to 5, the procedure which applies, in general, to ‘subsequent applications’. None of those paragraphs contains any indication to the effect that the ground of inadmissibility contained in Article 33(2)(d) of that directive (or the concept of ‘subsequent application’ defined in Article 2(q) thereof, for that matter) must be confined to situations where successive applications are made in the same Member State only. Most remarkably, Article 40(5) of Directive 2013/32 merely provides that ‘when a subsequent application is not further examined pursuant to this Article, it shall be considered inadmissible, in accordance with Article 33(2)(d)’ of that directive.

71.      That observation is not undermined by the fact that Article 40 of Directive 2013/32 contains another paragraph (paragraph 1) which mentions, specifically, ‘subsequent applications’ that are made ‘in the same Member State’. Indeed, that paragraph is not a provision of general scope, which, like paragraphs 2 to 5 of Article 40, aims to cover all the situations in which an application can be regarded as a ‘subsequent application’. As Court has recently confirmed, in so far as it applies to ‘subsequent applications’, that paragraph targets the very specific situation in which national law allows, exceptionally, the procedure following which the previous application was definitively rejected to be reopened by reason of a subsequent application. (30)

72.      That limited scope of Article 40(1) of Directive 2013/32 is corroborated by paragraph 7 of that article. That paragraph applies to the situation where a person with regard to whom a transfer decision (adopted in application of Article 29 of the Dublin III Regulation) has to be enforced makes further representations or a subsequent application in the transferring Member State. The situation covered by Article 40(7) of Directive 2013/32 being different from that covered by Article 40(1) thereof, it confirms that that provision is merely a lex specialis. (31)

73.      At any rate, Article 40(7) of Directive 2013/32 makes clear, (32) in my view, that the concept of ‘subsequent application’, as defined in Article 2(q) of that directive, is not confined to an application made before the same Member State as that in which a previous application of the same person was lodged. Indeed, that concept is, in fact, applied, in Article 40(7) of Directive 2013/32, to an application made before a different Member State, the transferring Member State. (33)

74.      Second, Article 33(2)(d) of Directive 2013/32 must be read in conjunction with the other grounds of inadmissibility contained in Article 33(2) of that directive, in particular Article 33(2)(a) thereof. That provision enables Member States to declare inadmissible an application on the ground that ‘another Member State has already granted international protection’ to the person concerned. While it is clear that Article 33(2)(a) of Directive 2013/32 concerns a different factual scenario than Article 33(2)(d) of that directive (namely that where a different Member State has responded positively, not negatively, to a previous application of the same person), it seems to me that the ‘dividing line’ between the respective scope of those two provisions is not always clear.

75.      Indeed, Article 33(2)(a) of Directive 2013/32 has already been applied by the Court to partially negative decisions. In the judgment in Ibrahim and Others, (34) the Court held that the ground of inadmissibility contained in A that provision could be applied by the Federal Office to declare inadmissible applications made by persons who had previously been granted subsidiary protection, but not refugee status, by another other Member State. It stated that ‘Article 33(2)(a) … extends the option previously provided for in Article 25(2)(a) of Directive 2005/85, which permitted such rejection solely where the applicant had been granted refugee status in another Member State’.

76.      In that judgment, the Court emphasised that Article 33(2)(a) of Directive 2013/32 (which, as I have just explained, entitles Member States to reject as inadmissible an application presented by an applicant after another Member State has, in essence, refused to grant him or her refugee status) constitutes an expression of the principle of mutual trust between the Member States. (35) Against that background, the Commission, however, argues that allowing Article 33(2)(d) to apply in inter-Member State situations would constitute more than an expression of the principle of mutual trust, as it would amount to mutual recognition of negative asylum decisions. Such mutual recognition could only be possible in a situation where the EU legislature had expressly provided it.

77.      I do not share that view.

78.      In fact, I agree with the Federal Republic of Germany that the Commission’s line of reasoning fails to take account of an important element. In my view, the mutual recognition of negative asylum decision would presuppose a high degree of ‘automation’ and require that a decision issued by the authorities of a Member State has a binding effect on the authorities of another Member State, which would, in principle, be obliged to recognise and enforce it as if it were their own. (36) I agree that such obligations may be difficult to impose on the authorities of the Member States without any express provision in primary law or express intention on the part of the EU legislature. (37)

79.      However, as I have explained in point 62 above, the wording of Article 33(2)(d) of Directive 2013/32 makes clear that Member States are not obliged to declare any application inadmissible by virtue of that provision. (38) If the Court opted for the solution which I propose it to adopt, the result would be that, when faced with a ‘subsequent application’ presented after the asylum procedure regarding a previous application of the same person was closed by a final decision in Member State A, Member State B would remain at liberty (provided it is the Member State responsible under the criteria provided in the Dublin III Regulation) to undertake a full examination on the merits of the claims made in such subsequent application, without being bound by any decision adopted by any Member State as regards a previous application of the same person.

80.      In those conditions, I consider that interpreting Article 33(2)(d) of Directive 2013/32, read in conjunction with Article 2(q) thereof, as meaning that, just like Article 33(2)(a) of that directive, it can apply in inter-Member State situations would not amount to creating a system of mutual recognition, where Member States would be obliged to recognise and enforce decisions of other Member States. If anything, that interpretation would merely confirm that the ground of inadmissibility contained in Article 33(2)(d) of Directive 2013/32 constitutes, too, an expression of the principle of mutual trust. It would be consistent with the fact that the EU legislature has not yet fully achieved, by providing for a principle of mutual recognition between the Member States of decisions granting (or refusing) refugee status and by specifying the detailed arrangements for implementing that principle, the objective pursued by Article 78(2)(a) TFEU, namely a uniform status of asylum for nationals of third countries, valid throughout the European Union. (39)

81.      Third, I am of the view that interpreting Article 33(2)(d) of Directive 2013/32, read in conjunction with Article 2(q) thereof, as I suggest would contribute to the objective of limiting ‘secondary movements’ between Member States. That objective, which underpins the Common European Asylum System as a whole, finds a concrete expression in recital 13 of Directive 2013/32.

82.      As the Commission and French Government have recalled, treating an application as a ‘subsequent application’ has certain consequences for the person who made that application. Not only can such an application be declared inadmissible pursuant to Article 33(2)(d) of Directive 2013/32, it can also (if it is not rejected as inadmissible) (40) be subject to an accelerated procedure. (41) In addition, Member States can provide derogations to the right of the applicant to remain on their territory. (42) Finally, a ‘subsequent application’ may be rejected as ‘manifestly unfounded’ at the close of an accelerated procedure and Member States may, in such circumstances, refrain from granting a period for voluntary departure and accompany the return decision with an entry ban. (43)

83.      What happens, then, if such consequences can only attach to ‘subsequent applications’ made in the same Member State (Member State A) and never to those made in a different Member State (Member State B), after the applicant engages in a ‘secondary movement’ by moving from Member State A to Member State B? The applicant who engages in such a ‘secondary movement’ actually benefits from a more favourable treatment than the one who ‘abides by the rules’ and remains in the Member State responsible. He or she can, in essence, start over with a ‘clean slate’ in Member State B, since that Member State is obliged to proceed to a full examination, on the substance, of his or her application. Overall, asylum seekers may, therefore, be encouraged to move from Member State A to Member State B, as soon as they receive a negative decision in Member State A. They may even refrain from appealing such a decision in Member State A and let it become final (given that that opens the door for them to initiate a new procedure in Member State B). With a view to maximising their chances of having their situation fully re-examined, asylum seekers may also be incentivised to make ‘new’ applications in as many other Member States as possible. (44)

84.      In such circumstances, secondary movements are, undoubtedly, encouraged, rather than limited. On the contrary, if Member State B has the option of declaring inadmissible a ‘subsequent application’ lodged before it, even though the final decision regarding a previous application of the same person was adopted not by its authorities, but by the authorities of Member State A, the temptation for that person to reach Member State B in the first place is significantly reduced.

85.      Fourth, I consider that the interpretation that I propose the Court to adopt contributes to another objective of Directive 2013/32, which is, as recital 36 thereof indicates, to alleviate, in certain conditions, the administrative burden imposed on the competent authorities of the Member States.

86.      ‘Secondary movements’ generate important administrative burdens for the competent national authorities of the Member States, in particular those in which a ‘subsequent application’ is lodged and which cannot transfer back the applicant to the Member State that conducted the asylum procedure regarding a previous application of the person concerned.

87.      Going back to the various scenarios which I have described in points 44 to 47, it is true that, in some cases, the ‘take back procedure’ put in place by the Dublin III Regulation may fail, and responsibility for examining the ‘subsequent application’ switch from Member State A to Member State B, because Member State B itself creates a ‘hurdle’ to the implementation of that procedure (for example, if it fails to submit a take back request on time) or declares itself responsible for examining it. However, in other cases, the reason why the take back procedure fails may be out of Member State B’s control. (45) One can easily make the point that it would be disproportionate to require Member State B to conduct, in all cases where a ‘subsequent application’ is made before it, a new, full examination on the substance of such an application.

88.      Finally, and before I conclude that section, I note that the French Government argues that Article 33(2)(d) of Directive 2013/32 must be read in conjunction with recital 36 thereof, whose second sentence links the possibility for Member States to declare ‘subsequent applications’ inadmissible with the principle of res judicata. In the view of that government, the principle of res judicata only applies to situations that are internal to a single Member State. As such, it claims that the ground of inadmissibility contained in Article 33(2)(d) of Directive 2013/32 can only concern the situation where the final negative decision on a previous application of the same person was taken by the same Member State as that before which the ‘subsequent application’ is made.

89.      I do not agree with the French Government that such an outcome can result from the mere fact that the second sentence of recital 36 of Directive 2013/32 refers to the principle of res judicata.

90.      In that regard, I recall that, as I have explained in my Opinion in Bundesrepublik Deutschland (Admissibility of a subsequent application) (46) that principle does not necessarily have a role to play in every situation where a subsequent application is lodged. Indeed, for the principle of res judicata to be relevant, a judicial decision is required. Even in a purely internal situation, the procedure regarding a previous application of the person concerned may have been closed by nothing more than an administrative decision of the competent authorities, against which no challenge before a court or tribunal has been made in a timely manner. In such cases, the principle of res judicata cannot apply because there is no judicial decision giving rise to its application. (47) It follows that the importance of that principle  should, within the context of the application of Article 33(2)(d) of Directive 2013/32, not be overemphasised, as, even in purely internal situations, it does not cover all the instances in which a ‘subsequent application’ can be declared inadmissible.

91.      I add that the first sentence of recital 36 of Directive 2013/32 already reflects that idea. Indeed, that sentence provides – in terms whose scope is broader than those employed in the second sentence of that recital – that ‘where an applicant makes a subsequent application without presenting new evidence or arguments, it would be disproportionate to oblige Member States to carry out a new full examination procedure’. Contrary to the French Government, I am thus of the view that the reference to the principle of res judicata in the second sentence of recital 36 of Directive 2013/32 does not support the conclusion that the ground of inadmissibility contained in Article 33(2)(d) of that Directive applies only where the asylum procedure concerning a previous application of the person concerned was conducted in the same Member State as that before which the ‘subsequent application’ is made.

(c)    Interim conclusion

92.      In the light of all the elements which I have outlined, I consider that Article 33(2)(d) of Directive 2013/32, read in conjunction with Article 2(q) thereof, must be interpreted as meaning that those provisions can, in the situation where Member State B becomes the Member State responsible (in application of the criteria laid down in the Dublin III Regulation) for examining the application made in it in lieu of Member State A, be relied upon by that Member State to reject as inadmissible a ‘subsequent application’ lodged in it, even though the asylum procedure regarding a previous application of the same person was closed by a final decision in Member State A. Indeed, that solution would further at least two objectives pursued by that directive – namely, first, that of limiting ‘secondary movements’ and, second, that of alleviating the administrative burden of the competent authorities of the Member States in certain situations. Furthermore, it would give concrete effect to the principle of mutual trust, which as I have explained, constitutes the basis of the Common European Asylum System. I see nothing in the wording of Article 33(2)(d) of Directive 2013/32, read in conjunction with Article 2(q) thereof, or in other provisions of that directive which would run counter to that interpretation.

93.      Having said that, it remains for me to explain why the solution that I propose the Court to adopt does not come at the expense of the protection of the rights of applicants nor risks jeopardising the effectiveness of the ‘take back procedure’.

(d)    On the importance of preserving the rights of applicants and the effectiveness of the ‘take back procedure’

94.      The French Government argues, with reference to the considerations that I have outlined in point 81 above, that the interpretation defended by the Federal Republic of Germany could prevent an adequate and complete examination of the applicant’s situation, whose importance the Court has consistently recalled in its case-law. (48) Taking a similar position, the Commission, for its part, mentions that there are practical obstacles to exchanges of information between Member States. In its view, it may be difficult for Member State B to be in possession of all the relevant elements on which the final, negative decision taken by Member State A is based and, therefore, to assess whether ‘new elements or findings relating to the examination of whether the applicant qualifies as a beneficiary of international protection by virtue of Directive 2011/95 … have arisen or have been presented by the applicant’. The scope for error, for the competent authorities of the Member States, may therefore be greater in inter-Member State situations than in purely internal situations.

95.      I agree with both the French Government and the Commission that the rights of applicants cannot be sacrificed in the name of the objectives of limiting ‘secondary movements’ or alleviating the administrative burden for the competent authorities of the Member States. As I have stated in my Opinion in Bundesrepublik Deutschland (Admissibility of a subsequent application), (49) it is clear that, when adopting the provisions relating to ‘subsequent applications’, the EU legislature had in mind not only to ‘alleviate’ the workload of those authorities, but also always to ensure a sufficiently high degree of protection for asylum seekers (by ensuring that they have an effective access to an adequate examination of their situation) (50)as well as compliance with the principle of non-refoulement, which establishes that nobody can be sent back to persecution. (51)

96.      However, I consider that the solution that I propose the Court to adopt is compatible with those other objectives, for several reasons.

97.      In that regard, I shall begin by mentioning Article 34 of the Dublin III Regulation. That provision aims to facilitate the exchange of information between the Member States, by imposing on them an obligation to cooperate. It states, in its paragraph 1, that ‘each Member State shall communicate to any Member State that so requests such personal data concerning the applicant as is appropriate, relevant and non-excessive’ for the purpose of, inter alia, examining the application for international protection. Paragraph 2(g) of that article indicates that the information referred to in paragraph 1 includes ‘the stage reached in the proceedings and the decision taken, if any’.

98.      At the hearing, the Federal Republic of Germany explained that, in case C‑123/23, in response to the Federal Office’s ‘request of information’ issued in application of Article 34 of the Dublin III Regulation, the Belgian authorities gave the Federal Office full access to the decision which they had adopted regarding the previous applications of N.A.K. and her children. In those conditions, I am of the view, contrary to the Commission, that it may perfectly be possible for Member State B to be in possession of all the elements on which the final, negative decision taken by Member State A had been based.

99.      Having said that, I agree with the Commission that the high degree of protection which must be guaranteed to asylum seekers could not be achieved if the competent authorities of a Member State could declare inadmissible a ‘subsequent application’ also in situations where they do not have access to all the elements on which the final negative decision adopted as regards a previous application of the same person was based.

100. In that regard, I note, however, that the Federal Republic of Germany rightly pointed out, at the hearing, that, if information regarding the asylum procedure conducted in Member State A is lacking, the rights of the applicants will nevertheless be protected because Member State B will de facto have to declare their subsequent applications admissible. Indeed, in such circumstances, that Member State will not be in a position to exclude that ‘new elements or findings relating to the examination of whether the applicant qualifies as a beneficiary of international protection … have arisen or have been presented by the applicant’ and that the second of the two express conditions laid out in Article 33(2)(d) of Directive 2013/32 (52) is not fulfilled.

101. I recall that, as I have explained in my Opinion in Bundesrepublik Deutschland (Admissibility of a subsequent application),  (53)Article 33(2)(d) of Directive 2013/32 must be interpreted as meaning that, while Member States are entitled to reject subsequent applications as inadmissible, that possibility is only open to the competent national authorities if no such ‘new elements or findings’ have arisen or have been presented by the applicant. Any uncertainty as to whether that condition is fulfilled (be it because of a deficit of information or for any other reason) must be construed in favour of the person concerned and lead to the admissibility of the ‘subsequent application’.

102. Contrary to the Commission, I am therefore of the view, much like the Federal Republic of Germany, that deficits of information as regards the previous asylum procedure conducted in a first Member State (Member State A) cannot negatively affect the treatment of that person’s ‘subsequent application’ in a second Member State (Member State B). That is an important limitation, which conditions the possibility, for the authorities of that Member State, to declare that application inadmissible in application of Article 33(2)(d) of Directive 2013/32.

103. There is, in my view, a second limitation, which also derives from the condition that no ‘new elements or findings relating to the examination of whether the applicant qualifies as a beneficiary of international protection … have arisen or have been presented by the applicant’.

104. As I have already indicated in point 66 above, in its recent judgment in Bundesrepublik Deutschland (Admissibility of a subsequent application), (54) the Court has adopted a broad interpretation of the concept of ‘new element’. Indeed, it has confirmed that that concept includes not only factual, but also legal elements, including a judgment of the Court which the previous decision did not take into account, irrespective of whether such a judgment was delivered before or after the adoption of the decision on the previous application.

105. In my view, it follows from that judgment, (55) that the courts or competent authorities of Member State B will, at any rate, be prevented from rejecting as inadmissible, in application of Article 33(2)(d) of Directive 2013/32, read in conjunction with Article 2(q) thereof, a ‘subsequent application’ made before it, if they have any doubt as to whether the final decision by which Member State A rejected a previous application of the same person failed to take account of a judgment of the Court which is relevant to whether the applicant qualifies as a beneficiary for international protection. That is another important limitation, which contributes to ensuring a high degree of protection for asylum-seekers.

106. In those circumstances, contrary to the French Government and the Commission, I consider that the solution that I propose the Court to adopt strikes an appropriate balance between the need to limit ‘secondary movements’ and alleviate the administrative burden for the competent authorities of the Member States, on the one hand, and the importance of ensuring the protection of the rights of applicants, on the other hand.

107. Finally, I admit that I agree with those interested parties that Article 33(2)(d) of Directive 2013/32, read in conjunction with Article 2(q) thereof, could not be interpreted in the manner which I suggest if such an interpretation would deprive the ‘take back procedure’ (whose key components I have described in Section A.1. above) of its purpose or utility.

108. In that regard, I recall, however, first, that the solution which I propose the Court to adopt is meant to apply only if Member State B becomes the Member State responsible in lieu of Member State A – that is to say, only in the situations where the Dublin III Regulation actually allows responsibility to switch from Member State A to Member State B and where a ‘take back procedure’ is not initiated or does not come to fruition. Article 33(1) of Directive 2013/32 confirms that limitation, since it states that the grounds of inadmissibility listed in Article 33(2)(a) to (e) of that directive enable Member States to declare inadmissible applications for international protection in certain cases, which are additional to (but not superseding) those ‘in which an application is not examined in accordance with the [Dublin III Regulation]’. (56)

109. Second, I am of the view that that solution could not render the ‘take back procedure’ detailed in that regulation irrelevant or useless. In that regard, it is true that, when presented with a ‘subsequent application’ made after a final decision was adopted in Member State A regarding a previous application of the same person, Member State B may find it easier to avoid the complications of the ‘take back procedure’ (with its various steps and strict deadlines) and rely instead on the discretionary clause contained in Article 17(1) of that regulation. In such a scenario, Member State B could, first, declare itself ‘responsible’ for examining the ‘subsequent application’ and, then, find that application inadmissible in application of Article 33(2)(d) of Directive 2013/32, read in conjunction with Article 2(q) thereof, without first issuing a ‘take back request’ and relying on the ‘take back procedure’ and transfer mechanism put in place by the Dublin III Regulation. (57)

110. However, I am not sure that that scenario will necessarily be favoured by Member State B. Indeed, before the authorities of that Member State can declare a ‘subsequent application’ inadmissible, in application of those provisions, they must, first, comply with all the steps of the specific procedure that applies to ‘subsequent applications’, which are detailed in Article 40 of Directive 2013/32.

111. In that regard, paragraphs 2 and 3 of that article indicate, as the Court recently confirmed, (58) that, when examining the admissibility of a subsequent application, the competent authorities of the Member States must, in essence, follow a two-step process. In the first place, they must subject the subsequent application to a preliminary examination (Article 40(2)). During that preliminary examination, they must determine whether one or several ‘new elements’ exist which relate to the examination of whether the individual in question qualifies as a beneficiary of international protection. If that is the case then, in the second place, the examination of the admissibility of the subsequent application continues, pursuant to Article 40(3) of that directive, which requires those authorities to determine whether new elements ‘significantly add to the likelihood’ of the applicant qualifying for refugee status or subsidiary protection. Taken as a whole, that procedure still takes time and requires administrative resources. In addition, it comes together with a number of obligations which are owed by the Member State to the applicant, as well as with a number of rights which that applicant can exercise (including the right to appeal the decision of inadmissibility). (59)

112. Furthermore, there always exists the possibility that, at the end of the procedure detailed in Article 40(2) and (3) of Directive 2013/32, the competent authorities of the Member States conclude that the ‘subsequent application’ is admissible. Indeed, if one or more ‘new elements’ exist, then those authorities do not have the option of declaring the subsequent application inadmissible. Instead, they must examine it on the merits and ensure that that examination complies with the basic principles and guarantees listed in Chapter II of that directive. (60)

113. In the light of those elements, I consider that the solution that I propose the Court to adopt does not risk jeopardising the effectiveness of the ‘take back procedure’ laid down in the Dublin III Regulation. On the contrary, I am of the view that that solution could actually contribute to reinforcing that procedure, in the situation where Member State B relies on it.

114. Let me illustrate. If Member State B did not have the option of declaring inadmissible, in application of Article 33(2)(d) of Directive 2013/32, read in conjunction with Article 2(q) thereof, the ‘subsequent application’ of an applicant who has previously applied for international protection in another Member State, Member State B could either successfully initiate a ‘take back procedure’ and transfer the applicant back to Member State A or examine that application in full, on the substance. In such a scenario, what would the applicant do? As I see it, he or she would attempt to resist being transferred back to Member State A as much as possible, in order to maximise his or her chances for a new, full examination of his or her situation in Member State B, if the transfer fails. On the other hand, if Member State B had the possibility of declaring the ‘subsequent application’ inadmissible, in application of those provisions, the applicant may not show such resistance. Overall, that could, in fine, increase the chances of success of the ‘take back procedure’ and transfer mechanism put in place by the EU legislature in the Dublin III Regulation.

115. By way of final remark, I wish to recall, again, that the interpretation which I propose the Court to adopt merely opens a possibility for the Member States to adopt provisions to the effect of declaring inadmissible ‘subsequent applications’ lodged before them after a previous application of the same person has been rejected by a final decision in another Member State (in accordance with the conditions laid down in Article 33(2)(d) and Article 2(q) of Directive 2013/32 are met). It does not place them under any obligation to do so.

VI.    Conclusion

116. In the light of all of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Verwaltungsgericht Minden (Administrative Court, Minden, Germany) as follows:

(1)      Article 33(2)(d) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, read in conjunction with Article 2(q) thereof,

must be interpreted as meaning that the mere fact that the asylum procedure regarding a previous application for international protection of the person concerned was closed by a decision to discontinue it, adopted on the basis of Article 28(1) of Directive 2013/32, is not, in and of itself, an obstacle to an application thereafter presented by the same person being regarded as a ‘subsequent application’ within the meaning of Article 2(q) of that directive. However, such an application cannot be regarded as coming within the scope of that provision, and the ground of inadmissibility contained in Article 33(2)(d) of Directive 2013/32 cannot apply, if the decision to discontinue the asylum procedure regarding the previous application has not been adopted yet or if the person concerned still has the opportunity to resume that procedure. In that regard, Article 28(2) of that directive states that ‘Member States may provide for a time limit of at least nine months’, during which the procedure can be resumed. It is up to the Member States, in their national law, to decide what that time limit is, so long as it is not less than the nine-month minimum set by that provision.

(2)      Article 33(2)(d) of Directive 2013/32, read in conjunction with Article 2(q) thereof,

must be interpreted as meaning that they can be relied upon in the situation where a Member State other than the Member State which delivered the final decision regarding a previous application for international protection of the person concerned becomes the Member State responsible for examining a new application made by that person (in application of the criteria laid down in Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person). Those provisions enable the Member State responsible to declare the new application inadmissible, on the ground that it constitutes a ‘subsequent application’, within the meaning of Article 2(q) of that directive, and that the asylum procedure regarding the previous application of the person concerned has already been closed by a final decision in that other Member State. That possibility is, however, subject to the condition, expressly laid out in Article 33(2)(d) of Directive 2013/32, that no ‘new elements or findings relating to the examination of whether the applicant qualifies as a beneficiary of international protection … have arisen or have been presented by the applicant’.

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1      Original language: English.

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i      The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

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2      Directive of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60).

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3      See judgments of 20 May 2021, L.R. (Application for asylum rejected by Norway) (C‑8/20, ‘the judgment in L.R. (Application for asylum rejected by Norway)’, EU:C:2021:404), and of 22 September 2022, Bundesrepublik Deutschland (Application for asylum rejected by Denmark) (C‑497/21, ‘the judgment in Bundesrepublik Deutschland (Application for asylum rejected by Denmark)’, EU:C:2022:721).

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4      Regulation of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ 2013 L 180, p. 31; ‘the Dublin III Regulation’).

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5      Directive of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9).

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6      See judgment of 10 December 2013, Abdullahi (C‑394/12, EU:C:2013:813, paragraph 53).

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7      See Article 3(1) of the Dublin III Regulation: ‘[t]he application shall be examined by a single Member State’.

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8      That is to say, movements of applicants from one Member State to another, once they have already reached the territory of the European Union, which may be motivated, inter alia, by differences in the legal systems or reception and living conditions.

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9      Under Article 18(1)(a) of the Dublin III Regulation, the Member State responsible shall also be obliged to take charge (not take back), under the conditions laid down in Articles 21, 22 and 29 of that regulation, of an applicant who has lodged an application in a different Member State prior to the examination of his or her application in the Member State responsible. However, that situation does not correspond to the ones at hand in the main proceedings.

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10      See Article 23(2) of the Dublin III Regulation, which indicates that a ‘take back request’ must be made within two months of receiving a Eurodac hit. If the request is based on evidence other than data obtained from the Eurodac system, it must be made within three months from the moment when the ‘subsequent application’ was lodged.

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11      See Article 23(3) of that regulation.

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12      See Article 25(1) of the Dublin III Regulation. As Article 25(5) thereof indicates, if Member State A fails to timely respond to the ‘take back request’, Member State B does not become the Member State responsible. Rather, Member State A’s failure to act is regarded as tantamount to accepting the request.

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13      See Article 29(2) of that regulation.

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14      My emphasis. It follows that Member State B can always decide not to initiate a ‘take back procedure’ and to examine itself an application lodged before it. That interpretation has been confirmed by the Court, which has stated that the authorities of a Member State in which a new application is lodged have the power (not the obligation), pursuant to Article 23(1) of the Dublin III Regulation, to issue a ‘take back request’ in respect of the person concerned (see judgment of 5 July 2018, X, C‑213/17, EU:C:2018:538, paragraph 33).

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15      That provision indicates, in essence, that an asylum procedure can be discontinued in the event of implicit withdrawal or abandonment of the application by the person concerned.

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16      Indeed, that provision presupposes that that application is presented ‘after a … decision has been taken on a previous application’.

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17      My emphasis.

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18      See, in that regard, my Opinion in Valstybės sienos apsaugos tarnyba and Others (C‑72/22 PPU, EU:C:2022:431, points 57 and 58).

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19      My emphasis.

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20      That interpretation is corroborated by Article 18(2) of the Dublin III Regulation, from which it results, in essence, that if the applicant is transferred back to Member State A (the Member State which has discontinued the asylum procedure as regards a previous application of the person concerned), that Member State shall not treat such a ‘new’ application as a ‘subsequent application’ (as provided for in Directive 2013/32) and must examine it.

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21      I add that an application made in Member State B before the expiry of the time limit for the applicant to resume the asylum procedure in Member State A, regarding his or her previous application, expires can never be regarded as a ‘subsequent application’. The relevant date is, I have explained, the date on which the application was made. Thus, Member State B cannot just wait for that time limit to expire and then ‘requalify’ the application as a ‘subsequent application’ and declare it inadmissible in application of Article 33(2)(d) of Directive 2013/32.

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22      See point 45 above.

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23      See recital 18 of Directive 2013/32, which requires that an adequate and complete examination be carried out by the competent authorities, and recital 43 thereof, which states that ‘Member States shall examine all applications on the substance, i.e. assess whether the applicant in question qualifies for international protection …’, except where provided otherwise in that directive. See, also, judgment of 8 February 2024, Bundesrepublik Deutschland (Admissibility of a subsequent application) (C‑216/22, EU:C:2024:122, paragraph 34).

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24      See my Opinion in Bundesrepublik Deutschland (Admissibility of a subsequent application) (C‑216/22, EU:C:2023:646, point 31). See, also, in that regard, judgment of 19 March 2020, Bevándorlási és Menekültügyi Hivatal (Tompa) (C‑564/18, EU:C:2020:218, paragraph 29 and the case-law cited).

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25      See, respectively, paragraphs 40 and 46 of the judgments in L.R. (Application for asylum rejected by Norway) and in Bundesrepublik Deutschland (Application for asylum rejected by Denmark).

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26      See judgment of 8 February 2024, Bundesrepublik Deutschland (Admissibility of a subsequent application) (C‑216/22, EU:C:2024:122, paragraphs 34 to 37).

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27      Namely, the situation where an application was made by a minor in the Member State in which he or she is present, after a previous identical application made by him or her was rejected by a final decision in another (first) Member State.

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28      See Article 25 of Council Directive of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13).

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29      See judgment of 6 June 2013, MA and Others (C‑648/11, EU:C:2013:367, paragraphs 63 and 64). I agree, however, with the Commission that, in that judgment, the Court did not specify the reasons why it considered that Article 25 of Directive 2005/85 could be relied upon by the second Member State in such a situation.

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30      See judgment of 13 June 2024, Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite (Refugee Status – Stateless persons of Palestinian origin) (C‑563/22, EU:C:2024:494, paragraph 57).

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31      The same reasoning can, in my view, be applied with regard to Article 41(1)(b) of Directive 2013/32, which, just like Article 40(1) thereof, refers, specifically, to ‘another subsequent application in the same Member State’. In that regard, I agree with the Federal Republic of Germany that one can assume that, if the EU legislature had intended the concept of ‘subsequent application’, used in Article 2(q) of Directive 2013/32, to cover applications which are made in the same Member State only, it would not have deemed it necessary, in Article 40(1) and Article 41(1)(b) of that directive, but not in other provisions of that instrument, to use the specific words ‘in the same Member State’.

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32      I recall that Article 40(7) of Directive 2013/32 provides that ‘where a person with regard to whom a transfer decision has to be enforced pursuant to [the Dublin III Regulation] makes further representations or a subsequent application in the transferring Member State, those representations or subsequent applications shall be examined by the responsible Member State, as defined in that Regulation, in accordance with this Directive’ (my emphasis).

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33      In that regard, I add that, in its proposal for a regulation replacing Directive 2013/32, the Commission, with a view to clarifying the procedure as regards the treatment of subsequent applications, has defined such applications as those ‘brought by the same applicant in any Member State’ after a previous application is rejected by means of a final decision. That proposal provides, in my view, further indicia that, already within the context of the application Directive 2013/32, the concept of ‘subsequent application’ includes an application lodged before a Member State other than that which adopted the final decision regarding a previous application of the same person (see Article 42(1) of ‘Proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU’ (COM(2016) 467 final), available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016PC0467). For the latest element of the legislative process, as available at the time of the elaboration of the present Opinion, see Article 4(s) and Article 39(2) of the draft Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, document of the Council and the European Parliament, 2016/0224/A(COD) and PE-CONS 16/24 of 26 April 2024.

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34      Judgment of 19 March 2019 (C‑297/17, C‑318/17, C‑319/17 and C‑438/17, EU:C:2019:219, paragraph 58).

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35      Ibid., paragraph 85.

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36      See, more generally, on the principle of mutual recognition in the field of asylum law, Opinion of Advocate General Medina in Bundesrepublik Deutschland (Effect of a decision granting refugee status) (C‑753/22, EU:C:2024:82, point 45).

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37      See Opinion of Advocate General Richard de la Tour in Generalstaatsanwaltschaft Hamm (Request for the extradition of a refugee to Türkiye) (C‑352/22, EU:C:2023:794, point 65). For an example where the EU legislature has adopted such a framework of mutual recognition in the area of freedom, security and justice, see Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (OJ 2008 L 327, p. 27), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24).

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38      I add that, pursuant to Article 5 of Directive 2013/32, ‘Member States may introduce or retain more favourable standards on procedures for granting and withdrawing international protection, in so far as those standards are compatible with [that] directive’.

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39      See judgment of 18 June 2024, Bundesrepublik Deutschland (Effects of a decision granting refugee status) (C‑753/22, EU:C:2024:524, paragraphs 56 and 68). See, also, Opinion of Advocate General Richard de la Tour in Generalstaatsanwaltschaft Hamm (Request for the extradition of a refugee to Türkiye) (C‑352/22, EU:C:2023:794, point 64).

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40      In that regard, I add that, as part of the preliminary examination to determine whether the ‘subsequent application’ is admissible or not, the Member States need not hold a personal interview of the applicant (see Article 42(2)(b) of Directive 2013/32).

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41      See Article 31(8)(f) of Directive 2013/32.

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42      See Article 41(1) of Directive 2013/32.

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43      See Article 32(2) of Directive 2013/32. See, also, Article 7(4) and Article 11(1)(a) 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 2008 L 348, p. 98).

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44      See, in that regard, Opinion of Advocate General Saugmandsgaard Øe in Bundesamt für Fremdenwesen und Asyl (Subsequent application for international protection) (C‑18/20, EU:C:2021:302, points 77 to 79).

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45      The facts at hand in the main proceedings of Case C‑123/23 actually illustrate this. The Federal Republic of Germany explained at the hearing that because the Federal Office had, first, requested the Spanish authorities to take back the applicants, by the time that it sought to do the same with regard to the Belgian authorities instead, it was too late for it to submit a ‘take back request’.

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46      C‑216/22, EU:C:2023:646 (points 51 to 53).

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47      See judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság (C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraph 186).

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48      See, inter alia, judgment of 9 September 2021, Bundesamt für Fremdenwesen und Asyl (Subsequent application for international protection) (C‑18/20, EU:C:2021:710, paragraph 43).

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49      C‑216/22, EU:C:2023:646 (point 29).

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50      See, in particular, recital 18 of Directive 2013/32, which states that ‘it is in the interests of both Member States and applicants for international protection that a decision is made as soon as possible on applications for international protection, without prejudice to an adequate and complete examination being carried out’ (my emphasis). See, also, recital 25 thereof, which indicates that ‘every applicant should have an effective access to procedures’.

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51      See recital 3 of Directive 2013/32.

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52      See point 64 above.

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53      C‑216/22, EU:C:2023:646 (point 29).

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54      Judgment of 8 February 2024 (C‑216/22, EU:C:2024:122, paragraphs 38 to 40).

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55      Ibid.

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56      In addition, Article 40(7) of Directive 2013/32 makes clear that the ‘take back procedure’ does, in fact, apply to ‘subsequent applications’ presented in other Member States.

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57      I add that, in its proposal for a regulation replacing the Dublin III Regulation, the Commission stated that, already in 2014, in the European Union, only about a quarter of the total number of take charge and take back requests accepted by the Member State responsible actually resulted in a transfer (see p. 11 of Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (COM(2016) 270 final), available at the following internet address: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2016:0270:FIN).

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58      See judgment of 10 June 2021, Staatssecretaris van Justitie en Veiligheid (New elements or findings)(C‑921/19, EU:C:2021:478, paragraphs 34 to 37).

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59      In particular, if the competent authorities conclude that the subsequent application is inadmissible, they must inform the applicant of the reasons for that outcome (in application of Article 42(3) of that directive) and he or she must also have the possibility of exercising his or her right to have an effective remedy against the decision of the competent authorities before a court or tribunal (see Article 46(1) thereof).

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60      See Article 40(3) of Directive 2013/32.