Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

EMILIOU

delivered on 7 September 2023(1)

Case C‑216/22

A. A.

v

Bundesrepublik Deutschland

(Request for a preliminary ruling from the Verwaltungsgericht Sigmaringen (Administrative Court, Sigmaringen, 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) – Subsequent application for international protection – Circumstances under which a subsequent application cannot be declared inadmissible – Judgment of the Court relevant for the examination of whether the applicant qualifies as a beneficiary of international protection – Article 40 – Concept of ‘new elements’ – Possibility for a judgment of the Court to constitute such a new element – Article 46(1)(a)(ii) – Appeal against a decision considering a subsequent application to be inadmissible in application of Article 33(2)(d) – Extent of the review performed by national courts in the context of the appeal – Procedural guarantees)

I.      Introduction

1.        The number of subsequent applications for international protection in the Member States of the European Union has significantly increased in recent years. (2) Such applications, which are defined as applications lodged ‘after a final decision has been taken on a previous application’ brought by the same person, are subject to particular procedural rules laid down under Directive 2013/32/EU. (3)

2.        Specifically, pursuant to Article 33(2)(d) of that directive, read in conjunction with Article 40 thereof, national authorities are granted the possibility of declaring subsequent applications inadmissible. However, that possibility is expressly subject to the condition that ‘no new elements … relating to the examination of whether the applicant qualifies as a beneficiary of international protection’ have arisen or been presented by that applicant. Consequently, if such ‘new elements’ exist, a subsequent application cannot be declared inadmissible in application of those provisions.

3.        The present case concerns, inter alia, the interpretation of that concept. A. A., the applicant in the main proceedings, is a Syrian national. In 2017, he applied for international protection in Germany. He was granted subsidiary protection, but not refugee status. In 2021, he lodged a subsequent application before the same authority. While he did not present any new factual elements, he stated that the Court of Justice had delivered a judgment (4) after the decision on his first application had been adopted, which, according to him, establishes that, when examining that application, the competent authority imposed a burden of proof on him which went beyond what is required by EU law. He claims that, in the light of that judgment, he should be granted refugee status. Within that context, the Court is presented with the opportunity to, inter alia, determine the circumstances in which one of its judgments, such as the one on which A. A. relies, should be regarded as a ‘new element’ within the meaning of Article 33(2)(d) of Directive 2013/32.

4.        In this Opinion, I will invite the Court to follow an approach that is based on the findings that it made in its judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság(‘the judgment of 14 May 2020’). (5)In that judgment, the Court held for the first time that a decision delivered by it constitutes, in certain circumstances, a ‘new element’ preventing a subsequent application from being declared inadmissible.

5.        In that respect, I will aim to clarify the meaning of the judgment of 14 May 2020, particularly as regards the principle of res judicata and the objective, inherent to Directive 2013/32, of alleviating the administrative burden which national competent authorities would face if they were required to engage in a full examination procedure for every subsequent application lodged before them. As I will emphasise throughout this Opinion, the present case touches, once again, upon the delicate balance that must be achieved between that objective and the need to ensure, in all cases, that the principle of non-refoulementis complied with and that the rights of asylum seekers are adequately protected.

II.    Legal framework

A.      European Union law

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 Regulation (EU) No 604/2013, [(6)] Member States are not required to examine whether the applicant qualifies for international protection in accordance with Directive 2011/95/EU [(7)] 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/EU 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/EU.

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/EU, 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).

…’

8.        Article 46 of the same directive, entitled ‘The right to an effective remedy’, states in relevant parts:

‘1.      Member States shall ensure that applicants have the right to an effective remedy before a court or tribunal, against the following:

(a)      a decision taken on their application for international protection, including a decision:

…

(ii)      considering an application to be inadmissible pursuant to Article 33(2);

…

…

3.      In order to comply with paragraph 1, Member States shall ensure that an effective remedy provides for a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to Directive 2011/95/EU, at least in appeals procedures before a court or tribunal of first instance.

…’

B.      German law

9.        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’).

10.      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, there is no need to conduct a new asylum procedure.’

11.      Paragraph 71 of that law, entitled ‘Subsequent application’, provides:

‘(1)      If, after withdrawal or unchallengeable rejection of a previous asylum application, the foreign national files a new asylum application (subsequent application), a new asylum procedure shall be conducted only if 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; this shall be examined by the Federal Office [for Migration and Refugees] …’

12.      The VwVfG contains general provisions regarding the administrative procedures of public authorities. Paragraph 51(1) to (3) 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.

(3)      The request must be made within three months. That delay starts running from the day on which the person concerned became aware of the ground for re-examination.’

III. Facts, national proceedings and the questions referred

13.      A. A., the applicant in the main proceedings, is a Syrian national. According to his own statements, he left Syria in 2012 and stayed in Libya until 2017. He then entered Germany via Italy and Austria.

14.      On 26 July 2017, A. A. applied for asylum in Germany. He stated, among other things, that he completed his military service in Syria between 2003 and 2005 and that he had left that country out of fear of being recalled for military service or being imprisoned if he refused to report for that service.

15.      By decision of 16 August 2017, the Bundesamt für Migration und Flüchtlinge (Federal Office for Migration and Refugees, Germany) granted him subsidiary protection, but rejected his application for refugee status. In essence, it took the view that, because A. A. came from an area in which several armed groups, including but not limited to the Syrian Army, were responsible for carrying out bombardments and because A. A. no longer lived in Syria when his family received a letter requiring him to join the armed forces for a second time, it could not be assumed that the Syrian State would necessarily consider his departure from Syria as an act of desertion or would perceive him as belonging to the opposition. Furthermore, it considered that A. A. had not established that, in the event of his return to Syria, he would be forced to serve with the Syrian Army. A. A. did not appeal that decision, which, accordingly, became final.

16.      On 15 January 2021, A. A. applied again to be granted refugee status in Germany. He relied on a judgment of the Court, namely the judgment in Bundesamt für Migration und Flüchtlinge (Military service and asylum), which was delivered after his first application had been rejected, and which, according to him, establishes that, when examining that application, the Federal Office for Migration and Refugees imposed a higher burden of proof on him than that which is required by EU law, and that the national authorities ought to have presumed that his departure from Syria would be perceived as an express act of political opposition. He argued that that judgment constitutes a change in his ‘legal position’ within the meaning of Paragraph 51(1) of the VwVfG and that the Federal Office for Migration and Refugees was, therefore, obliged to examine his subsequent application on the merits.

17.      By decision of 22 March 2021, that authority rejected A. A.’s subsequent application as inadmissible. It stated, in essence, that the judgment in Bundesamt für Migration und Flüchtlinge (Military service and asylum) did not give rise to a change in A. A’s ‘legal position’ and that it was not obliged to examine his subsequent application on the merits.

18.      A. A. brought an appeal against that decision before the Verwaltungsgericht Sigmaringen (Administrative Court, Sigmaringen, Germany), requesting that the same decision be set aside and that he be granted refugee status.

19.      That court explains that, pursuant to Paragraph 71 of the AsylG, if a person lodges a subsequent application for international protection after a previous application has been withdrawn or rejected by a final decision which is no longer open to challenge, a new asylum procedure must only be conducted if the requirements of Paragraph 51(1) to (3) of the VwVfG are met. The first of those provisions relates to the situation where the ‘legal position’ on which that final decision is based has changed in favour of the person concerned.

20.      Under German law, the concept of change to the ‘legal position’ within the meaning of that provision has been interpreted to encompass amendments to the applicable legal provisions only. Thus, a judgment of the Court such as that in Bundesamt für Migration und Flüchtlinge (Military service and asylum), on which A. A. relies in the main proceedings – which concerns only the manner in which that legislation ought to be interpreted, without affecting its validity or requiring that it be amended – does not constitute a change in the ‘legal position’ of the person concerned.

21.      The Verwaltungsgericht Sigmaringen (Administrative Court, Sigmaringen) wishes to know, in essence, whether Paragraph 51(1) of the VwVfG, as interpreted in German case-law, correctly reflects the way in which the concept of ‘new element’ must be understood within the context of the application of Article 33(2)(d) of Directive 2013/32 and Article 40(1) to (3) thereof. (8) In the light of the judgment of 14 May 2020, it wonders whether Paragraph 71(1) of the AsylG could be deemed not to have sufficiently transposed the requirements laid down in those provisions.

22.      It also wishes to know whether, in the present case, it is entitled to rule on the merits of A. A.’s application for international protection. In that regard, it observes that, under German law, when a subsequent application for international protection is declared inadmissible by the Federal Office for Migration and Refugees, the person concerned is, of course, entitled to challenge that decision before the national courts. However, when deciding on the appeal concerning the admissibility of such an application, national courts are not able to decide whether the person concerned is to be granted international protection or not. In principle, they only do so once the Federal Office for Migration and Refugees has itself formed a view as to whether the decision relating to the previous application for international protection must be amended in the light of the subsequent application.

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

‘(1)      (a)      Is a national provision which considers a subsequent application admissible only if the factual or legal position on which the original rejection decision was based has subsequently changed in favour of the applicant compatible with Article 33(2)(d) and Article 40(2) of Directive [2013/32]?

(b)      Do Article 33(2)(d) and Article 40(2) of Directive [2013/32] preclude a national provision that does not treat a decision of the [Court] as a “new element”[,] “new circumstance” or “new finding” if the decision does not establish the incompatibility of a national provision with EU law but is limited to the interpretation of EU law? What conditions, if any, apply in order for a [decision] of the [Court] which merely interprets EU law to be taken into account as a “new element”[,] “new circumstance” or “new finding”?

(2)      If Questions (1)(a) and [(b)] are answered in the affirmative: must Article 33(2)(d) and Article 40(2) of Directive [2013/32] be interpreted as meaning that a judgment of the [Court] which has ruled that there is a strong presumption that a refusal to do military service under the conditions set out in Article 9(2)(e) of Directive [2011/95] is linked to one of the five grounds listed in Article 10 of that directive must be taken into account as a “new element”[,] “new circumstance” or “new finding”?

(3)      (a)      Must Article 46(1)(a)(ii) of Directive [2013/32] be interpreted as meaning that the judicial remedy against an inadmissibility decision taken by the determining authority within the meaning of Article 33(2)(d) and Article 40(5) of [that directive] is limited to examining whether the determining authority has correctly concluded that the conditions for the subsequent application for asylum to be considered inadmissible… have been met?

(b)      If Question 3(a) is answered in the negative: must Article 46(1)(a)(ii) of Directive [2013/32] be interpreted as meaning that the judicial remedy against an inadmissibility decision also covers the examination of whether the conditions for the grant of international protection within the meaning of Article 2(b) of Directive [2011/95] have been met if the [national] court finds, after conducting its own examination, that the conditions for rejection of the subsequent application for asylum as inadmissible are not met?

(c)      If Question 3(b) is answered in the affirmative: does such a decision by the [national] court require that the applicant [first be] granted the special procedural guarantees [provided for in] the third sentence of Article 40(3) [of Directive 2013/32] in conjunction with the rules in Chapter II of [that directive]? May [that] court conduct that procedure itself or must it delegate it to the determining authority, where necessary after suspending the court proceedings? Can the applicant waive compliance with those procedural guarantees?’

24.      The request for a preliminary ruling, dated 22 February 2022, was registered at the Court of Justice on 23 March 2022. The German and Austrian Governments, as well as the European Commission, submitted written observations. The German Government and the Commission were represented at the hearing which took place on 28 February 2023.

IV.    Analysis

25.      By its questions, which all concern the situation where a subsequent application is lodged, the Verwaltungsgericht Sigmaringen (Administrative Court, Sigmaringen), which is the referring court in the present case, invites the Court to address, broadly, two distinct issues.

26.      First, it seeks guidance from the Court regarding the interpretation of the concept of ‘new element’, within the meaning of Article 33(2)(d) and Article 40 of Directive 2013/32, and the conditions in which a subsequent application can be declared inadmissible, in application of those provisions (Questions 1 and 2). As I have explained in point 2 above, the broader the interpretation of the concept of ‘new element’, the more difficult it is for the competent authorities to declare subsequent applications inadmissible. Conversely, the more narrowly that concept is interpreted, the easier it becomes for those authorities to dispose of such applications without any assessment on the merits.

27.      Second, the referring court enquires as to the extent of the remedy that A. A. must have against the decision ta issue, which concerns the decision of the Federal Office for Migration and Refugees to reject his subsequent application as inadmissible. In essence, it wonders whether, in the context of the appeal brought by A. A. before it, it must limit itself to determining whether the subsequent application of the person concerned was rightly rejected as inadmissible or whether it may go further in its review and also examine whether he or she must be granted refugee status, in view of the requirement laid down in Article 46(1) of Directive 2013/32 that applicants for international protection must be granted an effective remedy (Question 3(a) and (b)). In the affirmative, the referring court wishes to know which, if any, of the special procedural guarantees detailed in Chapter II of that directive it must comply with (Question 3(c)).

28.      I will consider those two issues in turn.

A.      The (in)admissibility of subsequent applications for international protection (Questions 1 and 2)

1.      Preliminary remarks on the relevant provisions of Directive 2013/32 and the background to the first two questions

29.      As I stated in point  1 above, Directive 2013/32 contains specific procedural rules for subsequent applications. To the extent that those rules are based on the rationale 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 … in accordance with the res judicata principle’, (9) those rules are destined to prevent that a disproportionate administrative burden is imposed on national competent authorities by forcing them to reassess a situation which they have already examined.At the same time, it is clear that, when adopting the provisions relating to subsequent applications, the EU legislature had in mind not only to give effect to that principle and to ‘alleviate’ the workload of those authorities, but also always to ensure a sufficiently high degree of protection for asylum seekers, (10)as well as compliance with the principle of non-refoulement, which establishes that nobody can be sent back to persecution. (11)

30.      That is the background against which Article 33(2)(d) and Article 40 of Directive 2013/32 were drafted. While the first of those provisions allows Member States to reject subsequent applications as inadmissible, it enables them to do so under strict conditions only. Indeed, a subsequent application can only be rejected as inadmissible by virtue of that provision if it is lodged after a final decision has been taken on a previous application. (12) Furthermore, that possibility is only open to the competent national authorities if, as I have already stated, ‘no new elements … relating to the examination of whether the applicant qualifies as a beneficiary of international protection … have arisen or have been presented by the applicant’. (13) Those are two conditions sine qua non, which apply cumulatively.

31.      In that regard, it is clear that Article 33(2 )(d) of Directive 2013/32 must be understood as containing an exhaustive ground for declaring subsequent applications inadmissible. Indeed, the first sentence of Article 33(2) of that directive states that Member States may consider an application for international protection (including a subsequent application) to be inadmissible ‘only if’ one of the grounds listed in that provision applies. (14) Consequently, Member States are not at liberty to provide additional grounds of inadmissibility for subsequent applications in their legislation. (15)

32.      With regard to how the competent authorities of the Member States must handle subsequent applications in practice, the relevant provision is Article 40 of Directive 2013/32.Paragraphs 2 and 3 of that article indicate, as the Court recently confirmed, (16) 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. (17) 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 the competent authorities to determine whether new elements ‘significantly add to the likelihood’ of the applicant qualifying for refugee status or subsidiary protection. (18)

33.      Just like Article 33(2)(d) of Directive 2013/32, Article 40 thereof does not provide any express definition of the concept of ‘new element’. Nevertheless, when one considers those two provisions together, the scope of that concept becomes clear in two important respects.

34.      First , the wording of Article 33(2)(d) and Article 40(2) and (3) of that directive (‘new elements … have arisen or have been presented by the applicant’) indicates that an element must be considered as ‘new’ when it came about after the decision on the applicant’s previous application was adopted or if the applicant has presented it for the first time as part of his or her subsequent application. (19) As such, a ‘new element’ cannot consist of an element that has already been examined by the competent authorities as part of the procedure concerning his or her previous application. As the Court has held, with reference to recital 36 of Directive 2013/32, a ‘new element’ is one on which the decision closing that procedure could not be based. (20)

35.      Second, in order to prevent a subsequent application from being declared inadmissible, the ‘new element’ must not only ‘relate to the examination of whether the applicant qualifies as a beneficiary of international protection by virtue of Directive 2011/95/EU’, but also ‘significantly add to the likelihood’ that his or her application be successful on the merits.  (21) That is an important limiting factor. Indeed, as the Austrian Government explains, not every new element can prevent a subsequent application from being declared inadmissible. Directive 2013/32 only requires that Member States refrain from such an outcome where the ‘new element’ ‘significantly add[s] to the likelihood’ that the person concerned be recognised as a beneficiary of international protection.

36.      Having made those clarifications, I note that, in the judgment of 14 May 2020, the Court already indicated that the concept of ‘new element’, within the meaning of Article 33(2)(d) and Article 40 of Directive 2013/32, is not limited to factual elements, but may also encompass elements of a purely legal nature, including judgments of the Court. Indeed, it stated verbatim that ‘a judgment of the Court finding that national legislation … is incompatible with EU law constitutes a new element relating to the examination of an application for international protection, within the meaning of that provision’. (22)

37.      That judgment concerned a situation where it was clear that the applications for international protection of the persons concerned had been rejected on the basis of a national rule that was contrary to EU law. Indeed, the competent authorities had relied on a ground of inadmissibility which, although provided for in Hungarian law, was not included among those listed in Article 33(2) of Directive 2013/32. The Court thus expressly found that that national provision was contrary to EU law. (23)

38.      Against that background, the referring court’s first two questions concern, more specifically, the issue of whether the finding reached in the judgment of 14 May 2020 only applies in a situation where it results from a judgment of the Court that the national legislation on the basis of which a previous application for international protection was rejected is contrary to EU law and must, accordingly, no longer be applied by national courts, or, more broadly, also in cases, such as the one at hand in the main proceedings, in which a judgment of the Court merely results in national legislation having to be reinterpreted (but not amended or declared inapplicable). Within that context, the referring court invites the Court to clarify the scope of its judgment of 14 May 2020.

39.      In the sections below, I will start by detailing the reasons why, in the light of, inter alia, the reasons given by the Court in the judgment of 14 May 2020, a judgment of the Court can generally constitute a ‘new element’ within the meaning of Article 33(2)(d) of Directive 2013/32. I shall then explain why I do not think that the distinction outlined by the referring court, which focuses on the different impact which a judgment of the Court may have on the relevant national legislation, has any role to play in the context of the interpretation of that provision. In that regard, I will also say a few words about why my answer to that question does not depend on whether such a judgment already existed at the time when a final decision as to a previous application of the person concerned was adopted or was delivered by the Court a posteriori.

2.      Why a judgment of the Court may constitute a ‘new element’

40.      In the judgment of 14 May 2020, the Court began by holding (24) that, save in certain limited circumstances, the competent authorities of the Member States are not required to reopen ex officio the procedure concerning a previous application for international protection of the person concerned once that procedure has been closed by a final decision, even though such a decision is contrary to EU law.

41.      The Court recalled the settled case-law relating to the importance, both in the legal order of the European Union and in the national legal orders, of the principle of res judicata. (25) Furthermore, it indicated that, in accordance with the principle of legal certainty, EU law does not require that administrative bodies be placed under an obligation, in principle, to reopen an administrative decision which has become final following the expiry of reasonable time limits for legal remedies or by exhaustion of domestic remedies. It stated that compliance with that principle prevents administrative acts which produce legal effects from being called into question indefinitely. (26)

42.      Relying, inter alia, on the judgment in Kühne & Heitz, (27) it emphasised that there are, of course, certain situations in which an administrative decision which has become final after being confirmed by a judicial decision may have to be reopened. Those situations are, however, limited. (28)

43.      In view of those findings, it may appear somewhat surprising that the Court then stated that the existence of a judgment of the Court establishing that a previous application for international protection was rejected on the basis of national legislation contrary to EU law – while not creating any obligation, for the competent authorities, to reopen ex officio the final decision rejecting such an application – nevertheless prevents the same authorities from declaring a subsequent application of the same person inadmissible in application of Article 33(2)(d) of Directive 2013/32, since it constitutes a ‘new element’, within the meaning of that provision. (29)In essence, it took the view that, whereas a procedure for the granting of international protection already closed by a final decision is protected, in all respects by the principles of legal certainty or res judicata (so much so that EU law does not require that such a procedure be reopened ex officio, save in certain limited circumstances), the protection afforded by those principles does not preclude the applicant from making a subsequent application and seeing such an application examined on the basis that, even though his or her factual situation has remained virtually unchanged, there exists a decision (in casu, a judgment) of the Court which must be regarded as a ‘new element’ within the meaning of Article 33(2)(d) and Article 40 of Directive 2013/32  . (30)

44.      I observe that, at the hearing, the German Government argued, in essence, that if virtually any judgment of the Court could, following the judgment of 14 May 2020, be regarded as a ‘new element’ and prevent a subsequent application from being declared inadmissible, the competent authorities of a Member State would be required to re-examine an administrative decision which has already become final every time the Court delivers a judgment relating to asylum law, regardless of whether the time limits for challenging that final decision have expired.

45.      I agree with that government that the distinction drawn by the Court in the judgment of 14 May 2020 between, on the one hand, the lack of any obligation for the competent authorities of the Member States to re-examine a decision already delivered on a previous application of the person concerned, even if there is a ‘new element’, and, on the other hand, the obligation for those authorities, in the light of that same element, to declare admissible and examine on the merits a subsequent application of that same person can appear, to some extent, to be artificial. Indeed, in both cases, the competent authorities of the Member States are, in essence, required to reassess the person’s situation while taking due account of the ‘new element’. (31)

46.      There are, however, several cogent reasons which, in my view, explain why a judgment of the Court may, without affecting the validity of a final decision already delivered on such a previous application, be regarded as a ‘new element’ within the meaning of Article 33(2)(d) and Article 40 of Directive 2013/32.

47.      In that regard, I note that, in the judgment of 14 May 2020, the Court stated that should a subsequent application be declared inadmissible for lack of a ‘new element’ in a situation where it is clear, in the light of a judgment of the Court, that the rejection of a previous application of the person concerned was contrary to EU law, then the incorrect application of EU law may be repeated in each new application for international protection of the person concerned without any possibility of providing him or her with an examination of his or her application that is not vitiated by the infringement of EU law. It considered that such an obstacle to the effective application of the rules of EU law in relation to the procedure for the granting of international protection could not reasonably be justified by the principles of legal certainty or res judicata. (32)

48.      The German Government itself recognises that a point of equilibrium must be found between the need to ensure protection of that principle and the interest of applicants for international protection in obtaining a new decision. It thus admits that the principle of res judicata is not absolute and may, in certain circumstances, be weighed against other considerations.

49.      Having said that, it seems to me that both that government and the Austrian Government are somewhat concerned that the principle of res judicata would not be sufficiently safeguarded were the concept of ‘new element’ within the meaning of Article 33(2)(d) of Directive 2013/32 to be given an excessively wide scope.

50.      With regard to that argument, I recall that, in order for a ‘new element’ to prevent a subsequent application from being declared inadmissible, it must, as I have already indicated in point 32above, ‘significantly add to the likelihood’ that the applicant qualifies as a beneficiary of international protection. In the light of that prerequisite, it is clear, as the Commission pointed out at the hearing, that, contrary to what those governments argue, not every judgment of the Court canproduce such a result.

51.      Moreover , I believe that some explanation as to the relevance of the principle of res judicata is required. As I have stated in point 29above, recital 36 of Directive 2013/32 expressly mentions that principle and links it to the possibility, provided in Article 33(2)(d) of that directive, for Member States to declare subsequent applications inadmissible. However, that does not mean, in my view, that that principle necessarily has a role to play in every situation where a subsequent application is lodged.

52.      Indeed, for the principle of res judicata to be relevant, a judicial decision is required. (33) Yet quite often 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, that principle cannot apply because there is no judicial decision to which it can attach. As the Court seemingly recognised in the judgment of 14 May 2020, it is then a different – and somewhat less absolute – form of the principle of legal certainty which becomes relevant. Of course in practice that does not make much of a difference. Indeed, as the Court held in that judgment, the principle of legal certainty requires that administrative bodies not be placed under an obligation, in principle, to reassess a situation that they have already examined. Yet the fact remains that, conceptually, the importance of the principle of res judicata should, within the context of the application of Article 33(2)(d) of Directive 2013/32, not be overemphasised.

53.      It follows that t he principle of res judicata – which is an expression of the principle of legal certainty – (34) is not applicable per se in a situation where a subsequent application is lodged after a final administrative decision has been delivered regarding a previous application of the person concerned which was never confirmed by a judicial decision. As has been explained in the past, it is precisely because judgments are considered different from other acts of a legal nature that they benefit from a ‘special form of protection’ by virtue of the principle of res judicata. (35) Such a higher degree of protection is, in principle, not warranted for administrative acts. (36)

54.      Within the context of the present case, the principle of legal certainty and that of res judicata must, in any case, be balanced against the fact that, when adopting Directive 2013/32, the EU legislature expressly sought to limit the circumstances in which a subsequent application may be declared inadmissible. Indeed, it recognised, in recital 36 of that directive, that the possibility for Member States ‘to dismiss a [subsequent] application as inadmissible in accordance with the res judicata principle’ no longer applies if the applicant provides ‘new evidence or arguments’. That possibility is further limited by the wording of Article 33(2)(d) and Article 40(2) and (3) of that directive, which state that it suffices, in that regard, that a ‘new element’ has been ‘presented’ by the applicant or has ‘arisen’. It follows that, while Article 33(2)(d) of Directive 2013/32 makes it possible to reject subsequent applications as inadmissible, that provision also seeks to give effect to the EU legislature’s express recognition that there are reasons why an applicant may need to raise a new claim for international protection following a negative decision of the competent authorities. (37)

55.      In that connection, I recall that, as I already pointed out in point 30 above, Article 33(2)(d) of Directive 2013/32, along with other provisions of that directive, aims to ensure, in particular, the protection of the principle of non-refoulement, which is guaranteed as a fundamental right in Article 19(2) of the Charter on Fundamental Rights of the European Union (‘the Charter’) (38) and mentioned in recital 3 of that directive. (39)In my view, that principle requires that, in every procedure for the granting of international protection, the default rule (subject to limited exceptions only) be the obligation for the competent authorities to examine the application on the merits, in the light of all the relevant factors; (40)the Member States being obliged, under both EU law and international law, (41) to ensure that applicants are not expelled or returned in any manner whatsoever to a situation in which they may face persecution. (42)That obligation, which cannot be derogated from, (43)also applies towards persons who have lodged a subsequent application. (44)It follows that the exception contained in Article 33(2)(d) of Directive 2013/32 is necessarily limited by the principle of non-refoulement.

56.      As such, a subsequent application cannot be rejected as inadmissible if there is a risk, in the light of a judgment of the Court, that the person concerned may otherwise be sent back to persecution, in breach of that principle. That may be the case, in my view, if there is, for example, a judgment of the Court which was not taken into account during the previous procedure and which states that it is highly likely that an act committed by a person in the position of the applicant will be perceived as an act of political opposition and will expose him or her to persecution if he or she were to be sent back to his or her country of origin. (45) Such a judgment should, I believe, prevent an applicant’s subsequent application from being declared inadmissible and be regarded as a ‘new element’.

57.      More generally, I also note that the Court has recalled, in the judgment of 14 May 2020, the importance of the right, recognised in Article 18 of the Charter and given concrete form by Directives 2011/95 and 2013/32, to qualify as a beneficiary of international protection if the conditions required by EU law are met. It stated that the practical effect of that right would be seriously compromised if a subsequent application could be declared inadmissible in application of Article 33(2)(d) of Directive 2013/32 in a situation where it is clear, in the light of a judgment of the Court, that the final decision on a previous application of the person concerned was contrary to EU law. (46)

58.      In that regard, I note that Article 78(1) TFEU states that the common policy developed by the European Union on asylum is aimed not only at ensuring compliance with the principle of non-refoulement, but also at offering ‘appropriate status’ to any third-country national ‘requiring international protection’. That objective underlies Directive 2013/32 and the EU asylum system as a whole. Indeed, as the Commission explained, that directive aims to facilitate access to the asylum procedure. (47) I add that, on a conceptual level, the right to qualify as a beneficiary of international protection derives from the idea, also widely accepted under the Geneva Convention, that a person is to be regarded as being entitled to protection as a refugee as soon as he or she satisfies the relevant criteria, irrespective of whether refugee status has been formally conferred on him or her or not. Consequently, when the competent authorities of the Member States examine an application for international protection they do not, strictly speaking, ‘grant’ or ‘confer’ refugee status to or on the person concerned. Rather, they recognise the existence of a status which is deemed to already exist. (48)

59.      It follows from those considerations, as the Court held in the judgment of 14 May 2020, that, whereas Article 33(2)(d) of Directive 2013/32 makes it possible to reject subsequent applications as inadmissible, out of respect for the principle s of res judicata or legal certainty and with a view to preventing a disproportionate administrative burden from being imposed on competent national authorities, those principles inevitably lose their importance if it becomes apparent, in the light of a judgment of the Court which was not examined during the previous procedure for the granting of international protection, that the final negative decision which closed that procedure was adopted in breach of the person’s right, under Article 18 of the Charter, to qualify as a beneficiary of international protection if the conditions required by EU law are met, or of the principle of non-refoulement protected under Article 19 thereof. In my view, the EU legislature intended, within the context of the application of Article 33(2)(d) of that directive, that the rights protected by those provisions of the Charter act as a counterweight against those very principles, meaning that it must generally be possible for judgments of the Court, which are relevant in determining the circumstances under which those rights may be breached, to be regarded as ‘new elements’. (49)

60.      In that regard, I would like to underline another element that is, in my view, of significant practical importance. As I have stated, the possibility to declare subsequent applications inadmissible is primarily intended to prevent a  disproportionate administrative burden from being imposed on national competent authorities by forcing them to reassess a situation that  they have already examined.

61.      At the same time, as I have explained in point 32 above, the competent authorities of the Member States are obliged (under Article 40(2) of Directive 2013/32) to make a preliminary assessment of every subsequent application which is presented to them in order to assess whether there exists a ‘new element’ relating to the examination of whether the applicant qualifies as a beneficiary for international protection and on which the prior decision could not be based. In the light of those particular obligations, it is, in my view, not overly burdensome nor unfeasible, in practice, to oblige them to consider, as part of that very assessment, whether there are ‘elements’ of the Court’s case-law which have come into existence and which could favourably affect the chances of the person concerned to benefit from international protection.

62.      In that connection I hardly need to point out that, when handling applications for international protection, the competent authorities of the Member States naturally have the duty to know and correctly apply EU law. In line with the findings which the Court made in the judgment of 14 May 2020 and which I recalled above, an applicant should, therefore, not be indefinitely prejudiced for what is primarily a responsibility of the relevant court and of those authorities.

63.      Furthermore, I note that it is not mandatory for applicants to be represented by a lawyer during the administrative procedure before the competent authorities. (50)It would therefore be unreasonable, in my view (given also that those persons come from non-Member countries and are not necessarily familiar with EU law), that they end up being prevented from ever seeing their subsequent application examined and being deemed to have ‘given up on that chance’ because they failed to challenge, in a timely manner, a decision contrary to EU law adopted in the context of a previous procedure before those authorities.

64.      In the light of those considerations, it is clear to me that the exception to the right for the applicants to have their application examined on the merits – which Article 33(2)(d) of Directive 2013/32 carves out – must remain confined to limited circumstances. Indeed, I believe that the concept of ‘new element’ must be interpreted broadly enough to include the existence of a judgment of the Court which establishes that the decision adopted in relation to a previous application of the same person was contrary to EU law and which is not only relevant to whether that person qualifies as a beneficiary of international protection, but also ‘significantly add[s] to the likelihood’ that he or she is recognised as such.

65.      For what it is worth, I add that it is in the light of that interpretation that the third sentence of paragraph 203 of the judgment of 14 May 2020 must, in my view, be read. That sentence – the meaning of which was debated at the hearing – provides that Article 33(2)(d) of Directive 2013/32 is ‘not applicable to a subsequent application, within the meaning of Article 2(q) of that directive, where the determining authority finds that the definitive rejection of the earlier application is contrary to EU law’. (51)To my mind, it is clear from paragraphs 196 to 198 of the judgment of 14 May 2020 that the same sentence was included by the Court simply to ensure that a person would not be deprived of the opportunity to have a fresh assessment of his or her situation in a scenario where it appears that the rejection of his or her previous application was contrary to EU law.As such, I am of the view that what the Court meant, in the third sentence of paragraph 203 thereof, when it stated that Article 33(2)(d) of that directive was ‘not applicable’, was that the ground of inadmissibility contained in that provision could not be opposed to a person, if it is clear that the rejection of his or her previous application was contrary to EU law.

66.      Having made those clarifications and explained more generally why a judgment of the Court constitutes, in certain circumstances, a ‘new element’ within the meaning of Article 33(2)(d) of Directive 2013/32, I shall now specifically address the referring court’s doubts as to whether that concept applies to a judgment such as the one at hand in the main proceedings.

3.      Beyond the Court’s judgment of 14 May 2020

(a)    The case at hand in the main proceedings

67.      Like the judgment of 14 May 2020, the judgment on which A. A. relies in the context of the main proceedings was delivered after a final decision was adopted with regard to his initial application for international protection. However, it does not contain a finding that certain national rules are contrary to EU law. In that regard, I recall that the Court found, in the latter judgment, that in the context of armed conflict, particularly civil war, and where there is no legal possibility of avoiding military obligations, it is highly likely that the refusal to perform military service will be perceived as an act of political opposition, irrespective of any more complex personal motives of the person concerned. (52) Based on, inter alia, that consideration, it held that, in such circumstances, there is a strong presumption that the prosecution and punishment for the refusal to perform military service referred to in Article 9(2)(e) of Directive 2011/95 relates to one of the five reasons for persecution set out in Article 10 thereof. (53)

68.      According to A. A., it follows from that judgment that the burden of proof that he was asked to satisfy in the context of the procedure concerning his previous application for international protection goes beyond what is required by EU law. As I stated in point 15 above, when the Federal Office for Migration and Refugees refused to grant A. A. refugee status, it did so on the ground that he had not established with sufficient certainty that his departure from Syria after completing his military service would be viewed as an act of political opposition. Consequently, that authority did not presume that if A. A. was to return to Syria, the punishment or prosecution to which his attitude could expose him would be connected to a reason for persecution.

69.      In the light of those circumstances, A. A. claims, before the referring court, that the judgment in Bundesamt für Migration und Flüchtlinge (Military service and asylum) constitutes a change to his ‘legal position’, within the meaning of national law, which must prevent his subsequent application from being declared inadmissible. Indeed, in his view, it must be regarded as a ‘new element’, within the meaning of Article 33(2)(d) and Article 40 of Directive 2013/32.

70.      The Commission essentially shares that interpretation. For their part, the German and Austrian Governments argue that only a judgment of the Court which finds or results in the invalidity or revision of the national legislation or legal basis of the prior decision itself can be regarded as a ‘new element’ within the meaning of Article 33(2)(d) of Directive 2013/32. They explain that, under German and Austrian law, a judgment which, like the judgment at hand in the main proceedings, merely causes a change in the interpretation of national provisions without affecting their validity or necessitating their amendment does not create an obligation for the competent authorities to declare a subsequent application admissible.

71.      I agree with the Commission. In my view, Article 33(2)(d) of Directive 2013/32 does not provide for the distinction which the German and Austrian Governments draw on the basis of their national law.

72.      In that regard, I note that it is not entirely clear from the wording of the first two questions, nor from the information in the case file, how that distinction must be understood. Indeed, one may wonder whether the referring court seeks clarification as to whether, when applying the concept of ‘new element’ within the meaning of Article 33(2)(d) of Directive 2013/32, one must distinguish the decisions of the Court which, in the words of the referring court, ‘[do] not establish the incompatibility of a national provision with EU law’ from those which do so (the first aspect), or whether one must distinguish decisions of the Court which result in the invalidity or modification of national legislation from those which merely cause such legislation to have to be reinterpreted (the second aspect). The first aspect would bring about a distinction based on the wording of the decisions of the Court, while the second would focus on the different effects that such decisions may, regardless of their wording, have on national provisions.

73.      I shall consider both aspects before briefly discussing the issue, raised during the hearing, of whether another kind of distinction must be drawn depending on whether the decision of the Court already existed at the time when a final decision as to a previous application of the person concerned was adopted or was delivered a posteriori.

(1)    The first aspect

74.      As regards the first aspect, I note that it is true that, in paragraphs 194 and 203 and in the operative part of the judgment of 14 May 2020, the Court made express reference to ‘a judgment of the Court finding that national legislation … is incompatible with EU law’. (54) However, it is clear that the Court never intended, by that formulation, to introduce a distinction between decisions of the Court that contain such a finding and those which merely provide guidance as to the interpretation of EU law.

75.      In that regard, I cannot emphasise enough that, when the Court gives a preliminary ruling, at the request of national courts or tribunals, under Article 267 TFEU, it provides a ruling as to the interpretation or validity of the provisions of EU law. Consequently, it does not rule on the validity of national provisions or their compatibility with EU law. Indeed, it remains for the national courts to draw the necessary consequences from the Court’s case-law and, as the case may be, reinterpret or no longer apply the relevant national law. That applies for all cases in which the Court delivers a preliminary ruling.

76.      It follows that it is quite simply impossible, in my view, to distinguish the judgments of the Court based on two categories: those which find that certain national provisions are incompatible with EU law, and those which only provide guidance as to the interpretation of EU law. Both categories are of the same nature, as they both concern the interpretation of EU law.

77.      Having made that clarification, I shall now explain why I consider that the concept of ‘new element’, within the meaning of Article 33(2)(d) of Directive 2013/32, does not either allow for a distinction to be made between judgments of the Court entailing that the relevant national provisions must be amended or repealed and those which merely entail a different interpretation of such provisions.

(2)    The second aspect

78.      In my view, the distinction that I have just outlined in the previous point cannot be accepted. Aside from being overly formalistic, such an interpretation of Article 33(2)(d) of Directive 2013/32 would mean that the definition of the concept of ‘new element’ would depend on how national provisions are worded and would, therefore, introduce unacceptable disparities as to the level of protection of applicants for international protection between Member States.

79.      Indeed, only a Member State whose national legislation is drafted narrowly would be bound to consider such a judgment as a ‘new element’ within the meaning of Article 33(2)(d) of Directive 2013/32 (because its legislation would have to be repealed or amended in the light of the judgment of the Court). Other Member States, whose legislation would be worded more broadly, would not be subject to the same obligation. A person would see his or her subsequent application be declared admissible or inadmissible depending on how narrowly or broadly the national legislation to which he or she is subject is drafted. (55)

80.      In my view, it is hard to think of a situation in which the uniform application of EU law, which Article 267 TFEU seeks to safeguard and which requires all Member States to take into account the elements of interpretation of EU law which the Court provides in its case-law, could be more at risk. Consequently, I do not think that the distinction which German law introduces – between judgments which result in the invalidity or amendment of national legislation and those which merely cause such legislation to have to be reinterpreted – has any role to play within the context of the application of Article 33(2)(d) of Directive 2013/32.

81.      It follows from the considerations above that the concept of ‘new element’, within the meaning of Article 33(2)(d) of Directive 2013/32, must be interpreted to the effect that it can also apply to a judgment of the Court which entails a change in the interpretation of the national provisions on which the final decision as to a prior application of the person concerned was based, without affecting the validity of those provisions or their wording.

(b)    Is the date on which the Court’s decision was delivered relevant?

82.      As I have already stated above, the judgment on which A. A. seeks to rely in the main proceedings was adopted after the final decision on his initial application was delivered (just like the judgment of 14 May 2020). However, at the hearing, the parties also answered questions of the Court regarding the situation where such a judgment is delivered not after, but before such a final decision is adopted. That situation not being the one which is at hand in the main proceedings, I am of the view that the Court does not need here to consider the broader issue of whether, in such circumstances, a judgment of the Court must also be regarded as a ‘new element’ within the meaning of Article 33(2)(d) of Directive 2013/32. However, should it nevertheless decide to do so, I will provide the following remarks.

83.      Returning to the definition of the concept of ‘new element’, which I recalled in point 34 above, it is clear that that concept applies to elements which were not examined in the context of the decision taken on the previous application and on which that decision could, therefore, not be based. (56)

84.      I agree that that definition applies more easily to a judgment delivered after, rather than before, the final decision as to the initial application was delivered. In that regard, I understand that the German Government argued, at the hearing, that if a judgment of the Court already existed at the time when such a decision was taken, then it could have been taken into account by the competent authorities and, thus, cannot be regarded as an element on which that decision could not be based, pursuant to the criteria which I have just recalled above.I must say that I have some sympathy for that argument. Indeed, to the extent that Member States must allow the decisions taken by their competent authorities to be challenged before a court or tribunal, any failure to take into account a judgment of the Court already in existence should, in principle (and leaving aside the practical difficulties which applicants face and which I shed light on in point 62 above), be addressed during the appeal procedure against the decision which fails to take (or incorrectly takes) into account that judgment.

85.      Nevertheless, I do not think that the mere fact that a judgment of the Court already existed at the time when the final decision on the initial application was delivered can, for the purposes of the interpretation of the concept of ‘new element’ within the meaning of Article 33(2)(d) of Directive 2013/32, lead to a different result than if the same judgment only came about after that decision was delivered. The distinction would, as the Commission argues, be artificial. Indeed, whether or not a judgment of the Court must be regarded as a ‘new element’ cannot depend, for all the reasons which I have outlined in points 40 to 65 above, on the date on which it was delivered. As the Court indicated in the judgment of 14 May 2020, what matters is that, in a situation where the decision concerning a previous application of the person concerned appears to be contrary to EU law, that person is not prevented from lodging a subsequent application and from seeing that application examined.

86.      In that regard, I add, first, that even in a case where a judgment of the Court is delivered after a final decision on a previous application for international protection is adopted, such a judgment is deemed to have an ex tunceffect, and its contents are, thus, regarded as if they had existed from the outset. In my view, that makes the distinction between judgments that are deliveredafter such a final decision is adopted and those that are delivered before rather insignificant, since the legal effects of those two categories of judgments are, in practice, the same.

87.      Second , I note that the Court has already clarified that the concept of ‘new element’ also applies to elements that already existed but were not relied on by the applicant during the procedure relating to his or her previous application, even though they could have been presented in support of that application. (57) That clarification, provided after the judgment of 14 May 2020 was delivered, is, in my view, crucial. Granted, the ‘new element’ which led the Court to that conclusionwas, in the case which led to that judgment, of a factual rather than legal nature (namely the fact that the applicant had failed to disclose his sexual orientation during the procedure relating to his first application). However, the Court expressly stated that Article 40(2) and (3) of Directive 2013/32 ‘makes no distinction as to whether the elements or findings relied on in support of a subsequent application arose before or after that decision was adopted’. (58)

88.      Consequently, it is clear from the Court’s case-law that , provided a judgment of the Court can be considered as a ‘new element’ within the meaning of those provisions and of Article 33(2)(d) of Directive 2013/32, the date on which such a judgment was delivered is irrelevant. (59)

89.      That broad interpretation of the concept of ‘new element’ seems to me to be coherent with the reasoning of the Court in the judgment of 14 May 2020, since, in that judgment, the Court did not give any weight to the date on which it had delivered the relevant decision.

B.      The scope of the judicial review in the context of an appeal against a decision declaring a subsequent application for international protection inadmissible (Question 3)

90.      As I stated in point 27 above, by its third question, the referring court wonders whether it is entitled, in the context of the appeal brought by A. A. before it, which concerns only the decision of the Federal Office for Migration and Refugees to reject his subsequent application as inadmissible, to also deliver a decision on the merits of A. A’s asylum claim (Question 3(a) and (b)). In the affirmative, it would like to know which, if any, of the special procedural guarantees detailed in Chapter II of Directive 2013/32 must be granted to him (Question 3(c)).

91.      In my view, that question raises little difficulty. I will thus limit my analysis to a few observations.

92.      To begin with, I recall that it is clear from Article 46(1)(a)(ii) of Directive 2013/32 that Member States must ensure that applicants for international protection have the right to an effective remedy before a court or tribunal against a decision rejecting their subsequent application as inadmissible.

93.      To be effective, such a remedy must provide, as Article 46(3) of Directive 2013/32 requires, for a full and ex nunc examination of both facts and points of law. Such an examination may also need to include ‘an examination of the international protection needs pursuant to Directive 2011/95/EU’. However, that is not systematically required. Indeed, the national courts or tribunals must only examine ‘the international protection needs’ in place of the competent administrative authorities ‘where applicable’, that is to say, in certain circumstances, which are not detailed by that provision or by any other provision of that directive.

94.      In that regard, it is settled case-law that, in the absence of harmonisation of national procedures, the detailed rules establishing the right of appeal are matters falling within the legal order of each Member State, in accordance with the principle of procedural autonomy, subject only to the requirement that those rules be no less favourable than those governing similar domestic situations (principle of equivalence) and, crucially, that they not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness). (60) Those requirements capture the general obligation of the Member States to ensure the judicial protection of the rights that individuals derive from EU law.

95.      It follows, and all the interested parties in the present case agree, that, in the absence of any provision in Directive 2013/32 requiring otherwise, and subject of course to the requirements which derive from the principles of equivalence and effectiveness, it is for each Member State to decide whether or not its national courts may or must, when deciding an appeal against a decision rejecting a subsequent application as inadmissible, also analyse the merits of the asylum claim of the person concerned in place of the competent authorities or whether they must instead refer the application back to those authorities for further examination by them. (61)

96.      The procedural autonomy of the Member States was confirmed in the judgment in Alheto,  (62)in which the Court indicated, albeit in relation to a different issue of admissibility, that Member States are free to provide, in their national law, that national courts deciding on that issue do not need to perform an examination of the application on the merits themselves and may simply decide that the file should be returned to the competent authorities for a new examination.

97.      I n my view, Member States are also free to provide, as German law appears to do in casu, that those courts must not perform that examination. When a provision to that effect is adopted in national law, the national courts must abide by it, provided, always, that the principles of effectiveness and equivalence are respected. If that is the case, a national court or tribunal such as the referring court is not entitled, in the context of an appeal launched before it by an individual against a decision rejecting his or her subsequent application as inadmissible, to deliver a decision as to the merits of such a person’s asylum claim.

98.      It seems to me that Questions 3(a) and (b) must, therefore, receive a negative answer and that the Court does not need to answer Question 3(c), given that that question is subject to the condition that Question 3(b) be answered affirmatively.

99.      However, should the Court take a different view and consider that, in such circumstances, national courts and tribunals must still be allowed to assess the person’s application on the merits, then it is clear to me that such a power can only be exercised by those courts and tribunals if all the factual and legal elements that are relevant in that regard are available to them. (63) Furthermore, it is my view that, in such circumstances, the procedural guarantees listed in Chapter II of Directive 2013/32, in particular those laid down in Article 12 of Directive 2013/32 and in Articles 14 to 17 and 19 to 25 thereof (regarding, for example, how personal interviews must be conducted, the provision of legal and procedural information to the person concerned, and his or her right to be informed and to receive legal assistance), cannot be dispensed with merely because the assessment as to the merits of a person’s asylum claim is performed by a court or tribunal, rather than by the competent administrative authorities. It follows, as the Commission explained, that if those authorities did not conduct a personal interview of the applicant as to the merits of his or her asylum claim, it is for the relevant court or tribunal to do so. (64)

V.      Conclusion

100. 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 Sigmaringen (Administrative Court, Sigmaringen, 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 40 thereof,

must be interpreted as meaning that the concept of ‘new element’ may include a judgment of the Court which causes a change in the interpretation of the national provisions on which the final administrative decision as to a previous application of the person concerned was based, without affecting the validity of those provisions or their wording. Whether such a judgment was delivered before or after that final decision does not affect that conclusion.

(2)      Article 33(2)(d) of Directive 2013/32, read in conjunction with Article 40 thereof,

must be interpreted as meaning that they preclude a national provision which allows a subsequent application to be rejected as inadmissible in a broader set of circumstances than those contemplated by those provisions, for example because it adopts a stricter interpretation of the concept of ‘new element’ to which those provisions refer. To be regarded as a ‘new element’, a judgment of the Court must, first, not have been considered by the competent authorities as part of the procedure concerning the previous application. Second, it must ‘relate to the examination of whether the applicant qualifies as a beneficiary of international protection by virtue of Directive 2011/95/EU’. Furthermore, in order to prevent a subsequent application from being declared inadmissible, it must ‘significantly add to the likelihood’ that his or her application is successful on the merits.

(3)      Article 46 of that directive

must be interpreted as not precluding Member States from adopting provisions to the effect that their national courts or tribunals are not entitled, in the context of an appeal brought before them against a decision rejecting a subsequent application as inadmissible, to adopt a decision as to the merits of the asylum claim of the person concerned provided, however, that the principles of equivalence and effectiveness are complied with.

1      Original language: English.

2      See ‘Practical Guide on Subsequent Applications’, published by the European Asylum Support Office (EASO) (now called the European Union Agency for Asylum (EUAA)), December 2021, p. 8; available at https://op.europa.eu/en/publication-detail/-/publication/5838f4ed-620c-11ec-a033-01aa75ed71a1/language-en. According to that document, by 2020, 1 applicant for international protection out of 10 had already applied for international protection in the same EU Member State (or associated country).

3      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); see Article 2(q).

4      See judgment of 19 November 2020, Bundesamt für Migration und Flüchtlinge (Military service and asylum) (C‑238/19, EU:C:2020:945; ‘the judgment in Bundesamt für Migration und Flüchtlinge (Military service and asylum)’).

5      C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367.

6      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’).

7      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).

8      See point 7 above. That provision further details the procedural rules that Member States must comply with when dealing with ‘subsequent applications’ for international protection.

9      See recital 36 of Directive 2013/32. Those procedural rules are also aimed at preventing a situation where unsuccessful asylum seekers, whose previous application for international protection has already been rejected by a final decision and whose factual and legal position is virtually unchanged, keep ‘trying their luck’ before the competent authorities of the Member States. Indeed, such a situation is desirable neither from the perspective of the Member States, due to the administrative burden that carrying out a full examination of every single subsequent application represents (especially when an application is abusive, for example because the applicant ‘splits’ on purpose the reasons for his or her application through multiple applications which he or she submits gradually), nor for the persons concerned, since it causes them to remain in ‘legal limbo’ and to live with the perpetual uncertainty of whether their situation will ever be resolved.

10      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).

11      See recital 3 of Directive 2013/32.

12      Pursuant to Article 2(e) of Directive 2013/32, a ‘final decision’ means ‘a decision on whether the third-country national or stateless person be granted refugee or subsidiary protection status … and which is no longer subject to a remedy …’.

13      To be clear, Article 33(2)(d) and Article 40 of Directive 2013/32 mention both ‘new elements’ and ‘[new] findings’. In this Opinion, I will refer only to ‘new elements’, as that is the expression which the Court used in the French and English version of its judgment of 14 May 2020 (see paragraph 203 of that judgment). Furthermore, in my view, the concept of ‘new element’ is so broad that it necessarily encompasses and overlaps with the concept of ‘[new] findings’, which is somewhat more narrow (indeed, to my mind, a ‘finding’ is, typically, the product of an investigation, examination or discovery, whereas an ‘element’ includes practically anything). However, whatever I will say about the concept of ‘new element’ of a legal nature also goes for ‘[new] findings’ of a legal nature.

14      See, also, paragraph 149 of the judgment of 14 May 2020 and the case-law cited. I recall that the grounds listed in Article 33(2) of Directive 2013/32 apply ‘in addition to cases in which an application is not examined in accordance with [the Dublin III Regulation]’.

15      For the sake of completeness, I add that Member States need not limit the possibility for subsequent applications to be considered admissible to the situation where one or more ‘new elements … relating to the examination of whether the applicant qualifies as a beneficiary of international protection … have arisen or have been presented by the applicant’. Indeed, they may provide for other reasons for such applications to be further examined (see Article 40(3) of Directive 2013/32).

16      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).

17      Typically, in practice, the new elements may be related to a previously presented material fact (which has already been examined by the competent authorities), be presented as part of a new material fact within the same claim, or form part of an entirely new claim. For a description of each scenario, see ‘Practical Guide on Subsequent Applications’, published by EASO, December 2021, p. 29 et seq.

18      If one or more ‘new elements’ exist and that condition is satisfied, then the competent 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 (see Article 40(3)). On the contrary, if they 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). I recall that, in the situation at hand in the main proceedings, A. A. has precisely sought to make use of that possibility. That is why the decision of the Federal Office for Migration and Refugees rejecting his subsequent application as inadmissible is currently under review before the referring court.

19      In such a situation, Member States are allowed, but by no means obliged, to adopt provisions in their national legislation to the effect that the subsequent application will only be further examined if the applicant concerned was, through no fault of his or her own, incapable of asserting such ‘new’ elements in the previous procedure (see Article 40(4) of Directive 2013/32).

20      See judgment of 10 June 2021, Staatssecretaris van Justitie en Veiligheid (New elements or findings) (C‑921/19, EU:C:2021:478, paragraph 50).

21      See Article 33(2)(d) and Article 40(2) of Directive 2013/32.

22      See paragraph 203 of that judgment.

23      See paragraphs 148 to 165 of the judgment of 14 May 2020.

24      See paragraphs 185 and 186 of the judgment of 14 May 2020.

25      Ibid., paragraph 185.

26      Ibid., paragraph 186.

27      See judgment of 13 January 2004 (C‑453/00, EU:C:2004:17).

28      See paragraph 187 of the judgment of 14 May 2020.

29      Ibid., paragraphs 194 and 203.

30      To be clear, it follows that, if a person makes a subsequent application and there exists a judgment of the Court which can be regarded as a ‘new element’ within the meaning of Article 33(2)(d) of Directive 2013/32 and which ‘significantly add[s] to the likelihood’ that he or she qualifies as a beneficiary of international protection, a fresh examination of all the relevant elements – even those which were already considered as part of the previous asylum procedure – is required.

31      Formally speaking, the obligation for the competent authorities of the Member States to make a fresh assessment of the applicant’s situation when examining his or her a subsequent application cannot, of course, be equated with an obligation, for those authorities, to re-examine on their own motion a decision which has already become final. The Court made that very clear in the judgment of 14 May 2020.

32      See paragraph 197 of the judgment of 14 May 2020. I note that the Court relied, in that regard, on the judgment of 2 April 2020, CRPNPAC and Vueling Airlines (C‑370/17 and C‑37/18, EU:C:2020:260, paragraphs 95 and 96).

33      See Turmo, A., L’autorité de la chose jugée en droit de l’Union européenne, Bruylant, 2017, p. 46.

34      See judgment of 1 June 1999, Eco Swiss (C‑126/97, EU:C:1999:269, paragraph 46).

35      Turmo, A., L’autorité de la chose jugée en droit de l’Union européenne, Bruylant, 2017, p. 46.

36      Ibid., pp. 49 to 52. That is why the Court has allowed exceptions and stated that administrative acts may sometimes have to be re-examined (see, in that regard, judgment of 13 January 2004, Kühne & Heitz, C‑453/00, EU:C:2004:17).

37      That is why, for example, Member States must not, when providing national rules regarding the procedural framework for the preliminary examination referred to in Article 40(2) of Directive 2013/32, ‘render impossible the access of applicants to a new procedure or result in the effective annulment or severe curtailment of such access’ (see Article 42(2) of that directive).

38      See judgment of 24 June 2015, T. (C‑373/13, EU:C:2015:413, paragraph 65).

39      The fact that the common policy on asylum developed by the European Union is aimed at ensuring compliance with that principle is also mentioned in Article 78(1) TFEU.

40      See, again, recital 18 of Directive 2013/32, which requires that an adequate and complete examination be carried out by the competent authorities. See, also, Article 4(1) and (3) of Directive 2011/95 (‘in cooperation with the applicant, it is the duty of the Member State to assess the relevant elements of the application’).

41      The principle of non-refoulement also forms part of the fundamental principles which underlie the Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 (United Nations Treaty Series, Vol. 189, p. 150, No 2545, 1954), entered into force on 22 April 1954 (as supplemented by the Protocol relating to the Status of Refugees of 31 January 1967, which entered into force on 4 October 1967) (‘the Geneva Convention’).

42      For a general discussion on the principle of non-refoulement and its relationship to refugee status, see Chetail, V. ‘Le principe de non-refoulement et le statut de réfugié en droit international’, La Convention de Genève du 28 juillet 1951 relative au statut des réfugiés 50 ans après : bilan et perspectives, Bruylant, Bruxelles, 2001.

43      It is precisely because that principle cannot be derogated from that Article 41(1) of Directive 2013/32 indicates that Member States can only provide exceptions to the right of the person concerned to remain n their territory pending the examination of his or her subsequent application if the principle of non-refoulement is respected.

44      In that regard, I note that EASO (now EUAA) has noted that the possibility for asylum seekers to make a subsequent application is crucial in upholding the principle of non-refoulement (see ‘Practical Guide on Subsequent Applications’, December 2021, p. 9).

45      Subject to the verifications of the referring court, that seems to me to be the case of the judgment on which A. A. relies in the main proceedings.

46      See paragraphs 195 and 196 of the judgment of 14 May 2020. As the Commission argued at the hearing, Article 33(2)(d) of Directive 2013/32 aims to guarantee the right of asylum seekers to have their applications for international protection examined by the national competent authorities, while at the same time ensuring that those authorities are not subject to excessive administrative burdens.

47      See, in that regard, recital 11 of Directive 2013/32, which states that it is to ensure a ‘comprehensive and efficient assessment of the international protection needs of applicants’ that the EU framework on procedures for granting and withdrawing international protection is based on the concept of a single procedure (my emphasis).

48      See Guide des procédures et critères à appliquer pour déterminer le statut de réfugié au regard de la Convention de 1951 et du Protocole de 1967 relatifs au statut des réfugiés, published by the United Nations High Commissionner for Refugees, p. 9; available in French at https://www.unhcr.org/fr/media/guide-des-procedures-et-criteres-appliquer-pour-determiner-le-statut-de-refugie-au-regard-de.

49      Provided, of course, that such a judgment is not only relevant to whether the person concerned qualifies as a beneficiary of international protection, but also ‘significantly add[s] to the likelihood’ that the person concerned is recognised as such.

50      Indeed, whereas Article 20(1) of Directive 2013/32 requires that Member States ensure that free legal assistance and representation is granted on request in the appeals procedures provided for in Chapter V of that directive, no such obligation applies during the examination of an application for international protection by the competent authorities (see, inter alia, Article 22 of that directive).

51      My emphasis.

52      See paragraph 60 of the judgment in Bundesamt für Migration und Flüchtlinge (Military service and asylum).

53      Ibid., paragraph 61. I recall that, in order for a person to obtain ‘refugee’ status under Article 2(e) of Directive 2011/95, a connection must be established between the acts of persecution listed in Article 9 of Directive 2011/95 (or the absence of protection against such acts) and the reasons for persecution listed in Article 10 thereof (see Article 9(3) of that directive). In the judgment in Bundesamt für Migration und Flüchtlinge (Military service and asylum), the Court recogniszed that that connection can, in certain circumstances, be presumed.

54      My emphasis.

55      As I have already recalled in point 57 above, in the judgment of 14 May 2020, the Court linked its interpretation of the concept of ‘new element’ to the importance of the right to qualify as a beneficiary of international protection if the conditions required by EU law are met (see paragraphs 195 and 196 of that judgment). Clearly, it could not have meant that the possibility to rely on that right should depend on how national legislation is worded.

56      See judgment of 10 June 2021, Staatssecretaris van Justitie en Veiligheid (New elements or findings) (C‑921/19, EU:C:2021:478, paragraph 50).

57      See judgment of 9 September 2021, Bundesamt für Fremdenwesen und Asyl (Subsequent application for international protection) (C‑18/20, EU:C:2021:710, paragraph 37).

58      Ibid. I note, in passing, that EASO explains, in its ‘Practical Guide on Subsequent Applications’ (December 2021, p. 26), that such elements ‘are new because they were not examined during the previous procedure and the final decision concerning the previous application was not based on them’.

59      As Advocate General Saugmandsgaard Øe stated in his Opinion in Bundesamt für Fremdenwesen und Asyl (Subsequent application for international protection) (C‑18/20, EU:C:2021:302, point 44), that interpretation is particularly clear in the light of Article 40(4) of Directive 2013/32.

60      See judgment of 13 December 2017, El Hassani (C‑403/16, EU:C:2017:960, paragraph 26 and the case-law cited).

61      See, however, judgment of 29 July 2019, Torubarov (C‑556/17, EU:C:2019:626). That case concerned a situation where the national competent authority had refused, on several occasions, to comply with a judgment of a national court annulling its initial decision concerning an application for international protection. The Court found that, in such circumstances, it may be for the court having issued such a judgment to vary the decision of that body and to substitute its own decision for that body’s decision, even though national law prohibited it from doing so.

62      Judgment of 25 July 2018 (C‑585/16, EU:C:2018:584).

63      In that regard, they may need to invite the competent authorities to produce any documentation or factual evidence (see, in that regard, judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 121).

64      The fact that national courts and tribunals can conduct such an interview was made clear by the Court in its judgment of 25 July 2018, Alheto (C‑585/16, EU:C:2018:584, paragraph 127).

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