Opinion of the Advocate General — ECLI:EU:C:2023:646
Date: 2023-09-07
Language of the case: German
Subject matter: Asylum policy;Area of freedom, security and justice;Border checks
Procedure: Reference for a preliminary ruling
Origin: Germany

Request for a preliminary ruling from the Verwaltungsgericht Sigmaringen (Germany) lodged on 23 March 2022 – A.A. v Bundesrepublik Deutschland (Case C-216/22) Language of the case: German Referring court Verwaltungsgericht Sigmaringen Parties to the main proceedings Applicant: A.A. Defendant: Bundesrepublik Deutschland Questions referred 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/EU? 1 b. Do Article 33(2)(d) and Article 40(2) of Directive 2013/32/EU preclude a national provision that does not treat a decision of the Court of Justice of the European Union (here: in preliminary ruling proceedings under Article 267 TFEU) as a ‘new element’ or ‘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 judgment of the Court of Justice of the European Union which merely interprets EU law to be taken into account as a ‘new element’ or ‘new circumstance’ or ‘new finding’? If Questions 1a and 1b are answered in the affirmative: must Article 33(2)(d) and Article 40(2) of Directive 2013/32/EU be interpreted as meaning that a judgment of the Court of Justice of the European Union 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/EU 1 is linked to one of the five grounds listed in Article 10 of that directive must be taken into account as a ‘new element’ or ‘new circumstance’ or ‘new finding’? 3. a. Must Article 46(1)(a)(ii) of Directive 2013/32/EU 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 Directive 2013/32/EU is limited to examining whether the determining authority has correctly concluded that the conditions for the subsequent application for asylum to be considered inadmissible under Article 33(2)(d) and Article 40(2) and (5) of Directive 2013/32/EU have been met? b. If Question 3a is answered in the negative: must Article 46(1)(a)(ii) of Directive 2013/32/EU 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/EU have been met if the court finds, after conducting its own examination, that the conditions for the rejection of the subsequent application for asylum as inadmissible are not met? c. If Question 3b is answered in the affirmative: does such a decision by the court require that the applicant has first been granted the special procedural guarantees under the third sentence of Article 40(3) in conjunction with the rules in Chapter II of Directive 2013/32/EU? May the 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? ____________ 1 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 (OJ 2013 L 180, p. 60). 1 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 (OJ 2011 L 337, p. 9).