# C_2023261EN.01001401.xml

| 24.7.2023 | EN | Official Journal of the European Union | C 261/14 |
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24.7.2023

EN

Official Journal of the European Union

C 261/14

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Request for a preliminary ruling from the Verwaltungsgericht Stuttgart (Germany) lodged on 3 May 2023 — HE v Federal Republic of Germany

(Case C-288/23, El Baheer (1))

(2023/C 261/21)

Language of the case: German

Referring court

Verwaltungsgericht Stuttgart

Parties to the main proceedings

Applicant: HE

Defendant: Federal Republic of Germany

Questions referred

| 1. | Where a Member State is not permitted to exercise the option provided by Article 33(2)(a) of Directive 2013/32/EU (2) to reject as inadmissible an application for international protection based on the granting of refugee status in another Member State, because the conditions of life in that Member State would expose the applicant to a serious risk of subjection to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, are the second sentence of Article 3(1) of Regulation (EU) No 604/2013, (3) the second sentence of Article 4(1) and Article 13 of Directive 2011/95/EU (4) and Article 10(2) and (3) and Article 33(1) and (2)(a) of Directive 2013/32/EU, to be interpreted as meaning that the granting of refugee status which has previously taken place prevents a Member State from undertaking an open-ended examination of the application for international protection made to it, obliging it to grant refugee status to the applicant without examining the substantive conditions for such protection? |
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1.

Where a Member State is not permitted to exercise the option provided by Article 33(2)(a) of Directive 2013/32/EU (2) to reject as inadmissible an application for international protection based on the granting of refugee status in another Member State, because the conditions of life in that Member State would expose the applicant to a serious risk of subjection to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, are the second sentence of Article 3(1) of Regulation (EU) No 604/2013, (3) the second sentence of Article 4(1) and Article 13 of Directive 2011/95/EU (4) and Article 10(2) and (3) and Article 33(1) and (2)(a) of Directive 2013/32/EU, to be interpreted as meaning that the granting of refugee status which has previously taken place prevents a Member State from undertaking an open-ended examination of the application for international protection made to it, obliging it to grant refugee status to the applicant without examining the substantive conditions for such protection?

| 2. | If the answer to question 1 is that the Member State is not bound by the granting of refugee status in another Member State and is obliged to undertake an open-ended examination of the application for international protection made to it:
  Do conditions in the recognising Member State which expose the applicant to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights preclude a requirement under the first sentence of Article 6(2) of Directive 2008/115/EC (5) for the applicant to go immediately to the territory of that Member State and so enable the examining Member State to issue a decision on the applicant’s return to his or her country of origin under the second sentence of Article 6(2) of Directive 2008/115/EC, read in conjunction with Article 6(1) thereof, without previously imposing the requirement specified in the first sentence of Article 6(2) of Directive 2008/115/EC?
  In that context, must the conditions in the recognising Member State be considered in isolation, in other words must the same criterion be applied that Article 33(2)(a) of Directive 2013/32/EU applies to a decision, or may the possibility be envisaged that, as a result of the Member State’s open-ended examination, the applicant does not obtain protection status in that Member State and therefore has the choice to return to the other Member State which granted him or her refugee status or to his or her country of origin? |
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2.

If the answer to question 1 is that the Member State is not bound by the granting of refugee status in another Member State and is obliged to undertake an open-ended examination of the application for international protection made to it:

Do conditions in the recognising Member State which expose the applicant to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights preclude a requirement under the first sentence of Article 6(2) of Directive 2008/115/EC (5) for the applicant to go immediately to the territory of that Member State and so enable the examining Member State to issue a decision on the applicant’s return to his or her country of origin under the second sentence of Article 6(2) of Directive 2008/115/EC, read in conjunction with Article 6(1) thereof, without previously imposing the requirement specified in the first sentence of Article 6(2) of Directive 2008/115/EC?

In that context, must the conditions in the recognising Member State be considered in isolation, in other words must the same criterion be applied that Article 33(2)(a) of Directive 2013/32/EU applies to a decision, or may the possibility be envisaged that, as a result of the Member State’s open-ended examination, the applicant does not obtain protection status in that Member State and therefore has the choice to return to the other Member State which granted him or her refugee status or to his or her country of origin?

| 3. | If the answer to question 2 is that, pursuant to the first sentence of Article 6(2) of Directive 2008/115/EC, the applicant must be required to go immediately to the territory of the recognising Member State:
  Is it possible for the decision taken under the first sentence of Article 6(2) of Directive 2008/115/EC requiring the applicant to go immediately to the territory of the recognising Member State and the decision requiring the applicant’s return to his or her country of origin under the second sentence of Article 6(2) of Directive 2008/115/EC, read in conjunction with Article 6(1) thereof, to be issued in a single administrative decision? |
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3.

If the answer to question 2 is that, pursuant to the first sentence of Article 6(2) of Directive 2008/115/EC, the applicant must be required to go immediately to the territory of the recognising Member State:

Is it possible for the decision taken under the first sentence of Article 6(2) of Directive 2008/115/EC requiring the applicant to go immediately to the territory of the recognising Member State and the decision requiring the applicant’s return to his or her country of origin under the second sentence of Article 6(2) of Directive 2008/115/EC, read in conjunction with Article 6(1) thereof, to be issued in a single administrative decision?

| 4. | If the answer to question 2 is that the applicant is not required to go immediately to the territory of the recognising Member State pursuant to the first sentence of Article 6(2) of Directive 2008/115/EC:
  Does the principle of non-refoulement (Articles 18 and 19(2) of the Charter of Fundamental Rights, Article 5 of Directive 2008/115/EC and Article 21(1) of Directive 2011/95/EU) preclude a decision to return the applicant to his country of origin pursuant to the second sentence of Article 6(2) of Directive 2008/115/EC, read in conjunction with Article 6(1) thereof, if the applicant has been granted refugee status in another Member State but the Member State in which he or she is currently present and has lodged an asylum application concludes, in an open-ended examination, that the applicant cannot be granted any protection status? |
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4.

If the answer to question 2 is that the applicant is not required to go immediately to the territory of the recognising Member State pursuant to the first sentence of Article 6(2) of Directive 2008/115/EC:

Does the principle of non-refoulement (Articles 18 and 19(2) of the Charter of Fundamental Rights, Article 5 of Directive 2008/115/EC and Article 21(1) of Directive 2011/95/EU) preclude a decision to return the applicant to his country of origin pursuant to the second sentence of Article 6(2) of Directive 2008/115/EC, read in conjunction with Article 6(1) thereof, if the applicant has been granted refugee status in another Member State but the Member State in which he or she is currently present and has lodged an asylum application concludes, in an open-ended examination, that the applicant cannot be granted any protection status?

| 5. | If the answer to question 4 is that the principle of non-refoulement precludes a return decision:
  Must the principle of non-refoulement (Articles 18 and 19(2) of the Charter of Fundamental Rights, Article 5 of Directive 2008/115/EC and Article 21(1) of Directive 2011/95/EU) be examined when the return decision is being issued pursuant to the second sentence of Article 6(2) of Directive 2008/115/EC, read in conjunction with Article 6(1) thereof, with the consequence that no return decision can be issued, or is it mandatory to issue a return decision pursuant to the second sentence of Article 6(2) of Directive 2008/115/EC, read in conjunction with Article 6(1) thereof, and then postpone the removal pursuant to Article 9(1)(a) of Directive 2008/115/EC? |
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5.

If the answer to question 4 is that the principle of non-refoulement precludes a return decision:

Must the principle of non-refoulement (Articles 18 and 19(2) of the Charter of Fundamental Rights, Article 5 of Directive 2008/115/EC and Article 21(1) of Directive 2011/95/EU) be examined when the return decision is being issued pursuant to the second sentence of Article 6(2) of Directive 2008/115/EC, read in conjunction with Article 6(1) thereof, with the consequence that no return decision can be issued, or is it mandatory to issue a return decision pursuant to the second sentence of Article 6(2) of Directive 2008/115/EC, read in conjunction with Article 6(1) thereof, and then postpone the removal pursuant to Article 9(1)(a) of Directive 2008/115/EC?

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

(2)  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 (recast) (OJ 2013 L 180, p. 60).

(3)  Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) (OJ 2013 L 180, p. 31).

(4)  Directive 2011/95/EU 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 (recast) (OJ 2011 L 337, p. 9).

(5)  Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98).

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