# C_2021462EN.01001401.xml

| 15.11.2021 | EN | Official Journal of the European Union | C 462/14 |
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15.11.2021

EN

Official Journal of the European Union

C 462/14

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Judgment of the Court (Third Chamber) of 9 September 2021 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — XY

(Case C-18/20) (1)

(Reference for a preliminary ruling - Border controls, asylum and immigration - Asylum policy - Common procedures for granting and withdrawing international protection - Directive 2013/32/EU - Article 40 - Subsequent application - New elements or findings - Concept - Circumstances already existing before the final closure of a procedure concerning an earlier application for international protection - Principle of res judicata - Fault of the applicant)

(2021/C 462/12)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: XY

Intervener: Bundesamt für Fremdenwesen und Asyl

Operative part of the judgment

| 1. | Article 40(2) and (3) 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 must be interpreted as meaning that the concept of ‘new elements or findings’ which ‘have arisen or been presented by the applicant’, within the meaning of that provision, includes elements or findings which arose after the final closure of the procedure concerning the earlier application for international protection as well as elements or findings which already existed before the closure of that procedure but which were not relied on by the applicant. |
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1.

Article 40(2) and (3) 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 must be interpreted as meaning that the concept of ‘new elements or findings’ which ‘have arisen or been presented by the applicant’, within the meaning of that provision, includes elements or findings which arose after the final closure of the procedure concerning the earlier application for international protection as well as elements or findings which already existed before the closure of that procedure but which were not relied on by the applicant.

| 2. | Article 40(3) of Directive 2013/32 must be interpreted as meaning that the substantive examination of a subsequent application for international protection may be conducted in the context of the reopening of the procedure which was the subject matter of the first application, provided that the rules applying to that reopening are in accordance with Chapter II of Directive 2013/32 and that the lodging of that application is not subject to any time limits. |
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2.

Article 40(3) of Directive 2013/32 must be interpreted as meaning that the substantive examination of a subsequent application for international protection may be conducted in the context of the reopening of the procedure which was the subject matter of the first application, provided that the rules applying to that reopening are in accordance with Chapter II of Directive 2013/32 and that the lodging of that application is not subject to any time limits.

| 3. | Article 40(4) of Directive 2013/32 must be interpreted as not allowing a Member State which has not adopted specific acts transposing that provision to refuse, under the general rules of national administrative procedure, to examine the merits of a subsequent application where the new elements or findings relied on in support of that application existed at the time of the procedure which dealt with the earlier application and were not presented in the context of that procedure because of a fault attributable to the applicant. |
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3.

Article 40(4) of Directive 2013/32 must be interpreted as not allowing a Member State which has not adopted specific acts transposing that provision to refuse, under the general rules of national administrative procedure, to examine the merits of a subsequent application where the new elements or findings relied on in support of that application existed at the time of the procedure which dealt with the earlier application and were not presented in the context of that procedure because of a fault attributable to the applicant.

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(1)  OJ C 161, 11.5.2020.

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