Opinion of the Advocate General — ECLI:EU:C:2021:302
Date: 2021-04-15
Language of the case: German
Subject matter: Asylum policy;Area of freedom, security and justice;Border checks
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
16 January 2020 
Referring court: 
Verwaltungsgerichtshof (Austria) 
Date of the decision to refer: 
18 December 2019 
Appellant on a point of law: 
XY 
Respondent authority: 
Bundesamt für Fremdenwesen und Asyl  
  
Subject matter of the main proceedings 
Asylum law — New elements or findings — Scope — Re-opening of the 
procedure — Incorrect transposition of the directive 
Subject matter and legal basis of the request 
Interpretation 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 (hereinafter also ‘the Procedures Directive’), Article 267 
TFEU 
Questions referred 
1. Do the phrases ‘new elements or findings’ that ‘have arisen or have been 
presented by the applicant’ in Article 40(2) and 40(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 (recast) (‘the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-18/20 
 
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Procedures Directive’) also cover circumstances that already existed before the 
previous asylum procedure was definitively concluded? 
If the answer to Question 1 is in the affirmative: 
2. In a case in which new facts or evidence come to light which could not have 
been relied on in the earlier procedure through no fault of the foreign national, is it 
sufficient that an asylum applicant is able to request the re-opening of a previous 
procedure which has been definitively concluded? 
3. If the applicant is at fault for not having relied in the previous asylum 
procedure upon the newly invoked grounds, is the authority allowed to deny 
substantive examination of a subsequent application on the basis of a national 
standard laying down a principle which is generally applicable in the 
administrative procedure, even though, in the absence of the adoption of special 
standards, the Member State has not correctly transposed Article 40(2) and 40(3) 
of the Procedures Directive and, as a consequence, has also not made express use 
of the possibility granted by Article 40(4) of the Procedures Directive to provide 
for an exception from substantive examination of the subsequent application? 
Provisions of EU law cited 
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 (also ‘the Procedures Directive’): recital 36, Articles 1, 2, 33 and 40. 
Provisions of national law cited 
Allgemeines Verwaltungsverfahrensgesetz (Law on General Administrative 
Procedure; ‘the AVG’): Paragraphs 68 and 69; 
Verwaltungsgerichtsverfahrensgesetz (Law on the Proceedings of Administrative 
Courts; ‘the VwGVG’): Paragraph 32; 
Asylgesetz 2005 (2005 Asylum Law; ‘the AsylG 2005’): Paragraphs 2, 3, 8, 10, 
57 and 75. 
Fremdenpolizeigesetz 2005 (2005 Law on the Policing of Foreign Nationals; ‘the 
FPG’): Paragraphs 52 and 55; 
Gesetz über das Verfahren vor dem Bundesamt für Fremdenwesen und Asyl (Law 
on Procedures before the Federal Office for Immigration and Asylum; ‘the BFA-
VG’): Paragraph 9. 
XY 
 
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Brief summary of the facts and procedure 
1 The appellant on a point of law (XY), who was born in 1990, hails from Iraq. On 
18 July 2015, having entered Austria unlawfully, he lodged an application for 
international protection under the AsylG 2005. During initial questioning by a 
public security officer, he stated that he is a Shia Muslim, that Shia militia had 
demanded that he fight for them, that he did not want to fight and kill other people 
or be killed, that, moreover, the situation in Iraq is very bad and that the country is 
a war zone. XY also emphasised that this was his ‘only reason for fleeing’. 
2 By letter dated 23 March 2016, XY asked to be interviewed as part of the asylum 
procedure and, referring to documents submitted at the same time, stated that he 
had been held in detention in his home country for five months on charges of 
involvement in criminal offences. He also mentioned that he had suffered a 
gunshot wound in 2008. 
3 On 30 May 2017, XY was interviewed by the Bundesamt für Fremdenwesen und 
Asyl (Federal Office for Immigration and Asylum). He stated that he is single and 
has no children, that he was born and had always lived in Baghdad, that his father 
and siblings had also lived in Baghdad, that his mother was already deceased and 
that he had lived with his father and siblings. 
4 XY gave as his reason for leaving his home country that he and his father are Shia 
Muslims, whereas his mother’s family are Sunni Muslims, that his mother’s 
relatives include ‘some people’ who belong to radical groups, and that those 
people had threatened to wipe out the entire family if XY ‘said anything about 
them’. 
5 XY was asked several times by the Bundesamt für Fremdenwesen und Asyl 
whether he had given all his reasons for fleeing and he always responded in the 
affirmative. 
6 Following further enquiries, the Bundesamt für Fremdenwesen und Asyl adopted 
a decision on 29 January 2018 rejecting both his request for asylum status under 
Paragraph 3(1) of the AsylG 2005 and his request for subsidiary protection status 
under Paragraph 8(1) of the AsylG 2005. Furthermore, XY was not granted a 
residence permit under Paragraph 57 of the AsylG 2005, a return decision was 
adopted against him (based on Paragraph 52(2) No 2 of the FPG, Paragraph 10(1) 
No 3 of the AsylG 2005 and Paragraph 9 of the BFA-VG) and it was determined 
in accordance with Paragraph 52(9) of the FPG that he could be lawfully deported 
to Iraq. The authority granted a period for voluntary departure under 
Paragraph 55(1) to (3) of the FPG of 14 days from the date of the final return 
decision. 
7 As grounds for its decision, the Bundesamt für Fremdenwesen und Asyl stated 
that XY’s submissions were not credible, as they were contradictory, illogical and 
contained a number of inconsistencies. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-18/20 
 
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8 XY lodged an appeal against the decision of the Bundesamt für Fremdenwesen 
und Asyl with the Bundesverwaltungsgericht (Federal Administrative Court, 
Austria), contesting the appraisal of the evidence by the Bundesamt für 
Fremdenwesen und Asyl. The Bundesverwaltungsgericht held a hearing on 
23 July 2018. 
9 XY did not adduce new grounds for fleeing either in his notice of appeal or in the 
hearing before the Bundesverwaltungsgericht. 
10 By order of 27 July 2018, the Bundesverwaltungsgericht rejected the appellant’s 
appeal as unfounded. 
11 On 4 December 2018, XY filed a new application for international protection 
(hereinafter also ‘the subsequent application’), in which he now stated that he had 
been homosexual for his entire life and therefore had to fear for his life in Iraq, 
that he had concealed this reason for fleeing when he first applied for asylum 
because he did not know that he would be allowed to live out his homosexuality in 
Austria, and that he had found out about this only in June 2018. 
12 The Bundesamt für Fremdenwesen und Asyl dismissed the subsequent application 
in respect of both his request for asylum status and his request for subsidiary 
protection status by a decision adopted on 28 January 2019 in accordance with 
Paragraph 68(1) of the AVG on the ground of res judicata. Furthermore, XY was 
not granted a residence permit under Paragraph 57 of the AsylG 2005, a return 
decision was adopted against him (based on Paragraph 52(2) No 2 of the FPG, 
Paragraph 10(1) No 3 of the AsylG 2005 and Paragraph 9 of the BFA-VG), an 
entry ban limited to a period of two years was issued in accordance with 
Paragraph 53(1) and (2) of the FPG and it was determined in accordance with 
Paragraph 52(9) of the FPG that he could lawfully be deported to Iraq. No period 
for voluntary departure was granted under Paragraph 55(1a) of the FPG. 
13 XY lodged an appeal against the decision of the Bundesamt für Fremdenwesen 
und Asyl with the Bundesverwaltungsgericht. 
14 By order of 18 March 2019, the Bundesverwaltungsgericht allowed the appeal 
inasmuch as it was directed against the entry ban. However, it declared the appeal 
unfounded as to the remainder. 
15 XY lodged an appeal on a point of law against that order before the 
Verwaltungsgerichtshof (Administrative Court). The present request for a 
preliminary ruling has been made in connection with the appeal on a point of law. 
Principal arguments of the parties in the main proceedings 
16 The Bundesamt für Fremdenwesen und Asyl gave as the ground for its rejection 
decision that the new reason given for fleeing was not credible, that, as the 
relevant facts of the case had not changed, the final decision adopted in the first 
XY 
 
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asylum procedure precluded a new substantive decision on the subsequent 
application, and that the subsequent application should therefore be dismissed on 
the ground of res judicata. 
17 The Bundesverwaltungsgericht essentially upheld that view. 
18 XY is arguing that it is not his homosexuality that is a new fact; it is that he is now 
able to express it, that his argument that he was only able to do so as a result of 
‘his coming out’ is credible ‘in any event’, because it is in line with general life 
experience, that, even if his plea of homosexuality were no longer admissible 
under Austrian law, it is in any event admissible under Directive 2013/32, and 
that, furthermore, the Bundesverwaltungsgericht should have taken account of his 
homosexuality in deciding whether there is cause to prohibit refoulement. 
Brief summary of the basis for the request 
19 The crucial aspect of the matter in this case, within the context of the first 
question, is how the phrases ‘new elements or findings’ that ‘have arisen or have 
been presented by the applicant’ contained in Article 40(2) and 40(3) of Directive 
2013/32 are to be interpreted. The question is whether these should be understood 
to include circumstances that existed before the decision on the first application 
for international protection became final. 
20 The open wording and scheme of the directive suggest that they should. However, 
this departs from the res judicata principle mentioned in recital 36 of Directive 
2013/32, at least on the basis of the Austrian understanding of that principle. 
Therefore, it is possible that that principle is to be understood differently in the 
context of Directive 2013/32. 
21 If the answer to the first question is in the affirmative, the referring court wishes, 
by its second question, to ascertain whether it suffices for the purposes of 
Directive 2013/32 that the asylum applicant is allowed to ask for the previous 
procedure to be re-opened or whether a new procedure is required for the 
subsequent application. 
22 Either is conceivable. The first variant is supported by the importance of the legal 
concept of res judicata that follows from recital 36 of Directive 2013/32. The 
second variant is supported by the wording of Article 40(3), which states that, if 
new elements or findings have arisen, ‘the application shall be further examined in 
conformity with Chapter II’. 
23 Likewise, if the answer to the first question is in the affirmative, the referring 
court wishes, by its third question, to ascertain whether an asylum applicant at 
fault for the fact that the new grounds were not relied upon in the first procedure 
may be denied substantive examination of the subsequent application, even 
though Article 40 of Directive 2013/32 was not transposed correctly. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-18/20 
 
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24 It is necessary to clarify in this context whether the Member States have to 
provide for an express exemption from substantive examination of subsequent 
applications in order to transpose Article 40(4) of Directive 2013/32 or whether 
national law can be interpreted in a manner consonant with EU law.