Judgment;Summary — ECLI:EU:C:2022:721
Date: 2022-09-22
Language of the case: German
Court formation: Tenth Chamber
Subject matter: Asylum policy;Area of freedom, security and justice;Border checks
Procedure: Reference for a preliminary ruling
Origin: Germany

Anonymised version 
Translation  C-497/21 – 1 
Case C-497/21 
Request for a preliminary ruling 
Date lodged: 
13 August 2021 
Referring court: 
Schleswig-Holsteinisches Verwaltungsgericht (Germany) 
Date of the decision to refer: 
6 August 2021 
Applicants: 
SI 
TL 
ND 
VH 
YT 
HN 
Defendant: 
Federal Republic of Germany 
  
SCHLESWIG-HOLSTEINISCHES VERWALTUNGSGERICHT 
(ADMINISTRATIVE COURT, SCHLESWIG-HOLSTEIN) 
[…] 
ORDER 
EN 
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In the administrative matter of 
1. Mr SI 
2. Mrs TL 
3. ND, represented by her parents SI and TL 
4. VH, represented by his parents SI and TL 
5. YT, represented by his parents SI and TL 
6. HN, represented by her parents SI and TL 
– Applicants – 
[…] 
v 
the Federal Republic of Germany, […] 
– Defendant – 
Subject matter of the dispute: Right of asylum – Secondary application 
(Paragraph 71a of the Asylgesetz (Law on asylum; ‘the AsylG’)) the 9th Chamber 
of the Schleswig-Holsteinisches Verwaltungsgericht (Administrative Court, 
Schleswig-Holstein) ordered as follows on 6 August 2021 […]: 
The proceedings are stayed. 
The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
1. Is national legislation under which an application for 
international protection can be rejected as an inadmissible 
subsequent application compatible with Article 33(2)(d) and 
Article 2(q) of Directive 2013/32/EU if the unsuccessful initial 
asylum procedure was conducted in a different EU Member 
State? 
2. If the answer to Question 1 is in the affirmative: Is national 
legislation under which an application for international protection 
can be rejected as an inadmissible subsequent application 
compatible with Article 33(2)(d) and Article 2(q) of Directive 
2013/32/EU even if the unsuccessful initial asylum procedure 
was conducted in Denmark? 
FEDERAL REPUBLIC OF GERMANY 
 
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3. If the answer to Question 2 is in the negative: Is national 
legislation under which an application for asylum is inadmissible 
in the event of a subsequent application and which makes no 
distinction in that respect between refugee status and subsidiary 
protection status compatible with Article 33(2)[(d)] of Directive 
2013/32/EU? 
Grounds 
I. 
1 The applicants, Georgian nationals, are seeking international protection status 
from the defendant after having already unsuccessfully requested protection under 
asylum law in Denmark. 
2 On 10 November 2020, the applicants made asylum applications in the Federal 
Republic of Germany. At their hearing held on the same day to establish the 
Member State responsible, the applicants stated that they had left their country of 
origin, Georgia, in 2017, had travelled to Denmark via Germany and had 
subsequently lived in Denmark for 3 years, where their asylum applications had 
been unsuccessful. 
3 In respect of the first applicant, EURODAC produced a hit for Denmark […]. The 
Kingdom of Denmark replied to the defendant’s request for information by letter 
of 31 March 2021, stating that examination of all the applicants’ applications for 
international protection of 28 November 2017 had been rejected on 30 January 
2019 and that that outcome had been finally confirmed on 27 April 2020 in the 
decision on the appeal lodged against those rejections. 
4 The Federal Office for Migration and Refugees (‘the Federal Office’) conducted 
the procedure as a secondary application procedure. 
5 At the hearing on 10 May 2021, the applicants stated that the reason why they 
could not return to their country of origin was because the first applicant had been 
stopped by the police in Georgia while working as a taxi driver, and his 
passengers, who had weapons in their backpacks, had been arrested. The 
applicants stated that the police knew that he was innocent, but the passengers’ 
family held him responsible for the arrest and were looking for him. The 
applicants had also already reported this in the asylum procedure in Denmark. 
However, according to the applicants, it was only after the conclusion of the court 
proceedings in that country that a vendetta was declared against the first applicant 
and his family. 
6 By decision of 3 June 2021, the Federal Office rejected the asylum application as 
inadmissible. It found that (national) deportation was not prohibited under 
Paragraph 60(5) and the first sentence of Paragraph 60(7) of the Aufenthaltsgesetz 
(Law on residence; ‘the AufenthG’). It called on the applicants to leave the 
Federal Republic of Germany within one week of notification and threatened, in 
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the event of non-compliance, deportation to Georgia or to another country willing 
to receive them. The prohibition on entry and residence pursuant to 
Paragraph 11(1) of the AufenthG was set to 36 months from the date of 
deportation. 
7 The Federal Office justified the inadmissibility decision on the grounds that the 
asylum application is inadmissible under Paragraph 29(1), point 5, of the AsylG, 
as it is a secondary application, in relation to which a further procedure is not to 
be conducted. The new asylum application in the Federal Republic of Germany is 
a secondary application within the meaning of Paragraph 71a of the AsylG, as the 
applicant had already unsuccessfully pursued an asylum procedure in a safe third 
country – Denmark – pursuant to Paragraph 26a of the AsylG. In accordance with 
the judgment of the Court of Justice of the European Union of 20 May 2021 
(C-8/20), the provision is applicable to Member States of the European Union. A 
further asylum procedure is not to be conducted, as the requirements of 
Paragraph 51(1) to (3) of the Verwaltungsverfahrensgesetz (Law on 
administrative procedure; ‘the VwVfG’) have not been met. Paragraph 51(1) of 
the VwVfG calls for a conclusive statement of facts, which may not be incapable 
from the outset, after every reasonable consideration, of helping to establish 
entitlement to asylum or granting of international protection. A conclusive 
statement which makes a more favourable decision seem possible is therefore 
sufficient. A change in the factual situation within the meaning of 
Paragraph 51(1), point 1, of the VwVfG requires that the material facts on which 
the decision was based had in fact subsequently changed in favour of the persons 
concerned. Although it is doubtful whether the applicants’ contentions are 
credible, that question can remain open because there has not been a change in the 
factual situation in any event. The proclamation of the vendetta is merely a 
product of the facts already pleaded without success in Denmark. 
8 On 14 June 2021, the applicants brought an action against the decision before the 
referring court, seeking its annulment. 
II. 
9 The proceedings are to be stayed. Pursuant to Article 267 TFEU, a preliminary 
ruling of the Court of Justice of the European Union (‘the Court of Justice’) must 
be obtained on the questions set out in the operative part of the order. The 
questions concern the interpretation of Article 33(2)(d) and Article 2(q) 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 (OJ 2013 L 180, p. 60) (‘the Asylum Procedures Directive’). 
10 1. The legal assessment under national law is governed by the Asylgesetz 
(Law on asylum; ‘the AsylG’) in the version published on 2 September 2008 
(BGBl. [Federal Law Gazette] I, p. 1798), most recently amended by Article 9 of 
the Law of 9 July 2021 (BGBl. I, p. 2467). 
FEDERAL REPUBLIC OF GERMANY 
 
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11 The following provisions of national law form the relevant legal framework of the 
case: 
12 Paragraph 26a of the AsylG – Safe third countries 
(1) Any foreign national who has entered the federal territory from a third 
country within the meaning of the first sentence of Article 16a(2) of 
the Grundgesetz (Basic Constitutional Law) (safe third country) cannot 
invoke Article 16a(1) of the Basic Constitutional Law. […] 
(2) In addition to the Member States of the European Union, safe third 
countries are those listed in Annex I. […] 
13 Paragraph 29 of the AsylG – Inadmissible applications 
(1) An application for asylum shall be inadmissible if 
1. […] 
5. in the case of a subsequent application under Paragraph 71 or a 
second application under Paragraph 71a, a further asylum 
procedure need not be conducted. […] 
14 Paragraph 31 of the AsylG – Decisions by the Federal Office on asylum 
applications 
(1) […] 
(2) In decisions on admissible asylum applications and in decisions 
pursuant to Paragraph 30(5) it shall be expressly determined whether 
the foreign national is granted refugee status or subsidiary protection 
and whether he or she is granted asylum. […] 
15 Paragraph 71 of the AsylG – Subsequent application 
(1) If, after the 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 Law on 
administrative procedure are met; this shall be examined by the 
Federal Office. […] 
16 Paragraph 71a of the AsylG – Second application 
(1) If the foreign national makes an asylum application (second 
application) in the federal territory following unsuccessful conclusion 
of an asylum procedure in a safe third country (Paragraph 26a) in 
which [EU] law on the responsibility for conducting asylum 
procedures applies or which has concluded an international agreement 
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thereon with the Federal Republic of Germany, a further asylum 
procedure shall be conducted only if the Federal Republic of Germany 
is responsible for conducting the asylum procedure and the conditions 
of Paragraph 51(1) to (3) of the Law on administrative procedure are 
met; this shall be examined by the Federal Office. […] 
[…] 
17 Paragraph 77 of the AsylG – Decision by the court 
(1) In disputes falling within the scope of this Law, the court shall rely on 
the situation of fact and of law obtaining at the time of the last hearing; 
if the decision is made without a hearing, the relevant point in time 
shall be that at which the decision is taken. […] 
18 2. The first question referred is relevant to the decision and requires 
clarification by the Court of Justice. In its decision in Case C-8/20, the Court of 
Justice expressly did not clarify that question (judgment of 20 May 2021 – 
C-8/20 – paragraphs 28-30, 40 [EU:C:2021:404]). 
19 2.1 The question referred is relevant to the decision on the applicants’ request. 
If the asylum application were wrongly rejected as being inadmissible, the 
decision would have to be annulled (see Bundesverwaltungsgericht [Federal 
Administrative Court], judgment of 14 December 2016 – 1 C 4.16 – BVerwGE 
157, 18, paragraph 16 [DE:BVerwG:2016:141216U1C4.16.0]). 
20 2.2. Paragraph 71 of the AsylG governs subsequent applications and 
Paragraph 71a of the AsylG governs second applications and the associated 
procedural treatment in contrast to the initial application procedure. Under 
Paragraph 71 of the AsylG, a subsequent application is a further asylum 
application after an application in the Federal Republic of Germany has already 
been unsuccessful. Under Paragraph 71a of the AsylG, a second application is a 
further asylum application after an application in a safe third country within the 
meaning of Paragraph 26a of the AsylG, that is to say the Member States of the 
European Union, Norway and Switzerland, has already been unsuccessful. The 
spirit and purpose of Paragraph 71a of the AsylG is to place second applications 
on an equal footing with subsequent applications, thereby placing the third 
country’s asylum law decision on an equal footing with an asylum law decision 
made by the Federal Republic of Germany (Federal Administrative Court, 
judgment of 14 December 2016 – 1 C 4.16 – BVerwGE 157, 18, paragraph 30 
[DE:BVerwG:2016:141216U1C4.16.0] […]). 
21 2.3. The question referred seeks to ascertain whether a subsequent application 
can be a subsequent application within the meaning of the Asylum Procedures 
Directive even in the case where it was made in the Federal Republic of Germany, 
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but the unsuccessful initial asylum procedure was concluded in another EU 
Member State. 
22 2.3.1. The Asylum Procedures Directive does not recognise the concept of a 
second application. Article 33(2)(d), Article 2(q) and Articles 40 to 42 of 
Directive 2013/32/EU regulate only subsequent applications. 
23 This may suggest that, where new elements or findings are presented within the 
meaning of Article 33(2)(d) of Directive 2013/32/EU and in accordance with 
Article 40(1) of Directive 2013/32/EU, they are subject to limited examination 
only, due to the particular admissibility restrictions that apply where the new 
presentation and the subsequent application based on it were made in the same 
Member State as that in which the unsuccessful initial procedure was conducted. 
This might be corroborated by the fact that the Commission has proposed that 
every further application in any Member State should be handled by the 
competent Member State as a subsequent application (Article 42(1) of the 
Proposal for a Regulation of the European Parliament and of the Council 
establishing a common procedure for international protection in the Union and 
repealing Directive 2013/32/EU, COM(2016) 467 final of 13 July 2016). 
24 In its judgment of 14 December 2016, the Federal Administrative Court ‘left to 
one side the question of whether the application across all the Member States of 
the concept of a subsequent application allowed under EU law gives rise to 
fundamental concerns (see Articles 32 to 34 of the old version of the Asylum 
Procedures Directive or Articles 40 to 42 of the new version of the Asylum 
Procedures Directive)’ (Federal Administrative Court, judgment of 14 December 
2016 – 1 C 4.16 – BVerwGE 157, 18, paragraph 26). Since then, the German 
administrative courts have not expressed concerns in their case-law as to any 
inconsistency in principle with EU law (Sächsisches Oberverwaltungsgericht 
[Higher Administrative Court of the Land of Saxony, order of 27 July 2020 – 5 A 
638/19.A – paragraph 12 et seq. ‘acte clair’ 
[DE:OVGSN:2020:0727.5A638.19.A.00]; Verwaltungsgericht Cottbus 
[Administrative Court, Cottbus], judgment of 14 May 2020 – 8 K 1895/18.A – 
paragraph 22 et seq. [DE:VGCOTTB:2020:0514.8K1895.18.A.00]; 
Verwaltungsgericht Minden [Administrative Court, Minden], judgment of 
9 December 2019 – 10 K 995/18.A – paragraph 33 et seq. 
[DE:VGMI:2019:1209.10K995.18A.00]; Verwaltungsgericht Schwerin 
[Administrative Court, Schwerin], judgment of 13 September 2019 – 15 A 
4496/17 As SN – paragraph 21 et seq. 
[DE:VGSCHWE:2019:0913.15A4496.17.00]; Verwaltungsgericht Karlsruhe 
[Administrative Court, Karlsruhe], judgment of 13 March 2019 – A 1K 3235/16 – 
paragraph 25 et seq. [DE:VGKARLS:2019:0313.1K3235.16.00]; 
Oberverwaltungsgericht Berlin-Brandenburg [Higher Administrative Court, 
Berlin-Brandenburg], order of 22 October 2018 – OVG 12 N 70.17 – paragraph 7 
‘acte clair’ [DE:OVGBEBB:2018:1022.OVG12N70.17.00]; Verwaltungsgericht 
Osnabrück [Administrative Court, Osnabrück], judgment of 27 February 2018 – 5 
A 79/17 – paragraph 39 [DE:VGOSNAB:2018:0227.5A79.17.0A]; 
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Administrative Court, Minden, order of 31 July 2017 – 10 L 109/17.A – 
paragraph 17 et seq. [DE:VGMI:2017:0731.10L109.17A.00]; Verwaltungsgericht 
Trier [Administrative Court, Trier], judgment of 10 February 2016 – 5 K 
3875/15.TR – paragraph 41 et seq. 
[DE:VGTRIER:2016:0210.5K3875.15.TR.0A]). 
25 2.3.2. The referring court is inclined to take the view that an application may be a 
subsequent application within the meaning of the Asylum Procedures Directive 
even where the unsuccessful initial procedure was concluded in a different 
Member State. 
26 First, the wording of Article 33(2)(d) and Article 2(q) of Directive 2013/32/EU 
suggests that, unlike Article 40(1) and Article 41(1), first sentence, point (b), of 
Directive 2013/32/EU, their scope is not limited to subsequent applications ‘in the 
same Member State’. 
27 The referring court is of the opinion that the concept of a subsequent application 
within the meaning of Article 40(1) of Directive 2013/32/EU, which requires 
further representations or a subsequent application ‘in the same Member State’, is 
probably different from the concept of a subsequent application within the 
meaning of Article 2(q) of Directive 2013/32/EU. The concept of a subsequent 
application within the meaning of Article 2(q) of Directive 2013/32/EU requires a 
final decision within the meaning of Article 2(e) of Directive 2013/32/EU. The 
legal consequence of Article 40(1) of Directive 2013/32/EU is incompatible with 
that. Consideration of the elements of the subsequent application in the scope of 
the examination of the previous application or the examination of the decision 
against which an appeal has been filed is not possible due to the finality of the 
decision. 
28 Furthermore, Article 40(7) of Directive 2013/32/EU stipulates that a subsequent 
application made after a transfer decision has been adopted is to be examined by 
the responsible State as defined in the Dublin III Regulation. That arrangement 
makes sense only if the subsequent application is not made in the same State as 
that in which the previous procedure was concluded. 
29 In that sense, Article 42, read in combination with Article 4(2)(i) of the 
Commission proposal for a regulation (Proposal for a Regulation of the European 
Parliament and of the Council establishing a common procedure for granting 
international protection in the Union and repealing Directive 2013/32/EU, 
COM(2016) 467 final of 13 July 2016), is probably simply a clarification. Even 
Article 3(2) of the Commission proposal for a regulation, which clarifies that the 
Member State in which the initial application was lodged is responsible, unless 
responsibility is designated under other criteria, clearly states that it must always 
be possible for the initial application to be made in a different Member State 
(Proposal for a Regulation of the European Parliament and of the Council 
establishing the criteria and mechanisms for determining the Member State 
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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), 
COM(2016) 270 final of 4 May 2016). It would be inconsistent with the Asylum 
Procedures Directive if the possibility to present grounds for asylum in a 
subsequent application depended on whether the earlier asylum procedure which 
had already concluded had been conducted in the same or rather in a different 
Member State. Conversely, it probably follows from Article 33(1) of Directive 
2013/32/EU (which is identical to the precursor provision in Article 25(1) of 
Directive 2005/85/EC) that recognition of the legal status sought in one Member 
State does not justify rejection of an asylum application as inadmissible in another 
Member State, but not that limited examination of a subsequent application in a 
different Member State is precluded (see Verwaltungsgericht München 
[Administrative Court, Munich], judgment of 7 February 2013 – M 11 K 
12.30661 – paragraph 21 [DE:VGMUENC:2013:0207.M11K12.30661.0A]). In 
that sense, as the thirty-sixth recital of Directive 2013/32/EU does not make an 
unequivocal statement, it does not preclude interpretation of Article 33(2)(d) of 
Directive 2013/32/EU. 
30 The spirit and purpose of the common European asylum procedure is that, if an 
unsuccessful asylum procedure has been concluded in one Member State, another 
Member State should not be required to repeat the full asylum procedure. That 
fundamental principle follows in particular from the thirty-sixth recital of 
Directive 2013/32/EU (see judgment of 6 June 2013, MA and Others, C-648/11, 
EU:C:2013:367, paragraph 64, concerning Article 25 of Directive 2005/85/EC). 
The reference to ‘res judicata’ inserted in the thirty-sixth recital of Directive 
2013/32/EU (which did not appear in the fifteenth recital of Directive 
2005/85/EC) changes nothing in this regard, as it simply specifies the powers of 
the Member States but without preventing an application from being a subsequent 
application within the meaning of the Asylum Procedures Directive where the 
unsuccessful initial procedure was concluded in a different Member State. The 
principle of res judicata is intended to prevent further dispute by giving final 
decisions binding effect across all the Member States (see Higher Administrative 
Court of the Land of Saxony, order of 27 July 2020 – 5 A 638/19.A – 
paragraph 17 [DE:OVGSN:2020:0727.5A638.19.A.00]). 
31 3. The second question referred is relevant to the decision and requires 
clarification by the Court of Justice if the first question is answered in the 
affirmative. 
32 3.1 The question referred is relevant to the decision on the applicants’ request. 
If the asylum application was wrongly rejected as being inadmissible, the decision 
would have to be annulled (see Federal Administrative Court, judgment of 
14 December 2016 – 1 C 4.16 – BVerwGE 157, 18, paragraph 16 
[DE:BVerwG:2016:141216U1C4.16.0]). 
33 3.2. The question referred seeks clarification as to whether an application can 
be a subsequent application within the meaning of the Asylum Procedures 
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Directive if the unsuccessful initial procedure was indeed concluded in a Member 
State, but that Member State – in casu, Denmark – is not bound by either the 
Asylum Procedures Directive or Directive 2011/95/EU (OJ L 337, p. 9; ‘the 
Qualification Directive’). 
34 3.2.1. The referring court first states that, in accordance with the case-law of the 
Court of Justice of the European Union (judgment of 20 May 2021 – C-8/20 – 
paragraph 37 [EU:C:2021:404]), an application is not a subsequent application 
within the meaning of Article 33(2)(d) and Article 2(q) of Directive 2013/32/EU if 
the preceding unsuccessful asylum procedure was conducted in a third country. 
35 The applicability of Article 33(2)(d) of Directive 2013/32/EU first requires that 
the application is a subsequent application. According to Article 2(q) of Directive 
2013/32/EU, a ‘subsequent application’ is ‘a further application for international 
protection made after a final decision has been taken on a previous application, 
including cases where the applicant has explicitly withdrawn his or her application 
and cases where the determining authority has rejected an application following 
its implicit withdrawal in accordance with Article 28(1)’. 
36 First, the previous application can only be an application within the meaning of 
Article 2(b) of Directive 2013/32/EU and therefore requires a request made by a 
third-country national or a stateless person for protection ‘from a Member State’. 
Second, the ‘final decision’ (Article 2(e) of Directive 2013/32/EU) is a decision 
on whether a third-country national or stateless person is to be granted refugee or 
subsidiary protection status by virtue of Directive 2011/95/EU. This implies being 
bound by Directive 2011/95/EU, which can naturally occur only in respect of 
Member States. In addition, Article 2(e) of Directive 2013/32/EU contains an 
explicit reference to remaining in the Member State concerned. 
37 It is true that Denmark is a Member State of the EU. However, according to 
recital 51 of Directive 2011/95/EU and recital 59 of Directive 2013/32/EU, 
Denmark is not taking part in the adoption of those directives and is not bound by 
them or subject to their application. 
38 Nor are the provisions of the directives applied in Denmark by any other legal act, 
as far as can be seen. The Agreement between the European Community and the 
Kingdom of Denmark on the criteria and mechanisms for establishing the State 
responsible for examining a request for asylum lodged in Denmark or any other 
Member State of the European Union and Eurodac for the comparison of 
fingerprints for the effective application of the Dublin Convention (OJ 2006 L 66, 
p. 38) covers neither the Asylum Procedures Directive nor the Qualification 
Directive. 
39 In particular, Article 1(1) of the Agreement between the European Community 
and the Kingdom of Denmark on the criteria and mechanisms for establishing the 
State responsible for examining a request for asylum lodged in Denmark or any 
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other Member State of the European Union and Eurodac for the comparison of 
fingerprints for the effective application of the Dublin Convention leads only to 
limited parity with the other Member States with regard to the Dublin Regulation 
and the Eurodac Regulation. 
40 3.2.2. The referring court is inclined to take the view that the mere membership 
of a State in the European Union without it being bound by the relevant asylum 
legislation of the European Union, namely the Asylum Procedures Directive and 
the Qualification Directive, is not sufficient to reject a further asylum application 
in another Member State as an inadmissible subsequent application. 
41 It is precisely because of its membership in the European Union that Denmark 
does not participate in the Common European Asylum System, but only in the 
Dublin responsibility system (now under the Dublin III Regulation – Regulation 
604/2013 – see Paragraph 29a(2) of the Danish Law on aliens, Udlændingeloven, 
LBK No 1513 of 22 October 2020) and the Eurodac procedure by virtue of the 
abovementioned agreement. Denmark is not bound by the Reception Directive 
(Directive 2013/33/EU), the Asylum Procedures Directive or the Qualification 
Directive. However, the continuing involvement of Denmark in the Dublin 
responsibility system is based on the assumption that the Danish asylum system is 
equivalent to the provisions of EU law in its substantive level of protection and in 
its procedural configuration and that that is sufficient. 
42 In its judgment concerning the question whether a further asylum application can 
be rejected as an inadmissible subsequent application if the initial application was 
made in Norway, the Court of Justice focused primarily on the fact that Norway – 
unlike Denmark in the present case – is not a Member State of the European 
Union (judgment of 20 May 2021 – C-8/20 – paragraph 39 [EU:C:2021:404]). It 
also stated that no other conclusion can be drawn from the Agreement between the 
European Community and the Republic of Iceland and the Kingdom of Norway 
concerning the criteria and mechanisms for establishing the State responsible for 
examining a request for asylum lodged in a Member State or in Iceland or 
Norway, since that agreement does not transpose any provisions of the Asylum 
Procedures Directive or the Qualification Directive (ibid., paragraphs 42 and 45). 
43 Against that background, the referring court is inclined to take the view that the 
term ‘Member State’ within the meaning of the Asylum Procedures Directive is to 
be interpreted restrictively to the effect that it only covers Member States which 
participate in the Common European Asylum System through their being bound 
by the abovementioned directives. 
44 3.2.3. In order for an asylum application to be rejected as inadmissible under 
Article 33(2)(d) of Directive 2013/32/EU, and thus under Paragraph 71a(1) of the 
AsylG, it must be a subsequent/follow-up application and, more importantly, an 
asylum procedure must have been concluded unsuccessfully by a final decision. 
According to Article 2(e) of Directive 2013/32/EU, the term ‘final decision’ 
means a decision on whether the third-country national or stateless person should 
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be granted refugee or subsidiary protection status by virtue of Directive 
2011/95/EU and which decision may no longer be subject to challenge. According 
to Article 2(j) of Directive 2013/32/EU, the term ‘refugee status’ means the 
recognition by a Member State of a third-country national or a stateless person as 
a refugee. According to Article 2(g) of Directive 2013/32/EU, the term ‘refugee’ 
means a third-country national or a stateless person who fulfils the requirements 
of Article 2(d) of Directive 2011/95/EU. According to Article 2(k) of Directive 
2013/32/EU, the term ‘subsidiary protection status’ means the recognition by a 
Member State of a third-country national or a stateless person as a person eligible 
for subsidiary protection. According to Article 2(h) of Directive 2013/32/EU, the 
term ‘person eligible for subsidiary protection’ means a third-country national or a 
stateless person who fulfils the requirements of Article 2(f) of Directive 
2011/95/EU. 
45 Paragraph 7 of the Danish Law on aliens grants a right of residence to refugees 
within the meaning of the Geneva Convention on Refugees of 28 July 1951 
(subparagraph 1), to persons who are at risk of the death penalty, torture or 
inhuman or degrading treatment or punishment in their country of origin 
(subparagraph 2) and (since a legislative amendment in February 2015) to persons 
who face one of the risks referred to in subparagraph 2 due to a particularly 
serious situation in their country of origin which is characterised by indiscriminate 
violence and attacks against civilians (subparagraph 3). This is at least similar to 
the corresponding provisions of EU law on refugee status in Article 2(g) of 
Directive 2013/32/EU, read in combination with Article 2(d) of Directive 
2011/95/EU, and on subsidiary protection in Article 15 of Directive 2011/95/EU. 
46 Against the background of the Court of Justice’s case-law on Norway, in 
accordance with which equivalence of the level of protection cannot be the 
decisive factor, since, if it were, legal certainty would be affected, (judgment of 
20 May 2021 – C-8/20 – paragraphs 46-47 [EU:C:2021:404]), the referring court 
is inclined to take the view that the fact of not being directly bound by the 
Qualification Directive and thus by the definitions of refugee status and subsidiary 
protection precludes the assumption of an asylum procedure concluded 
unsuccessfully by a final decision. 
47 4. The third question referred is relevant to the decision and requires 
clarification by the Court of Justice if the second question is answered in the 
negative. 
48 4.1 The question referred is relevant to the decision on the applicants’ request. 
If the asylum application were (in part) wrongly rejected as being inadmissible, 
the decision would have to be annulled (in part) (see Federal Administrative 
Court, judgment of 14 December 2016 – 1 C 4.16 – BVerwGE 157, 18-34, 
paragraph 16 [DE:BVerwG:2016:141216U1C4.16.0]). 
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49 4.2. The question referred seeks to secure clarification, if the second question 
referred is answered in the negative, as to whether an inadmissibility decision is 
wholly precluded or whether an inadmissibility decision should be adopted on the 
recognition of refugee status. 
50 4.2.1. Article 33(1) and (2) of Directive 2013/32/EU refers solely to the overall 
heading/concept of ‘international protection’ in accordance with Article 2(i) of 
Directive 2013/32/EU, with no differentiation between refugee status and 
subsidiary protection status. Paragraph 29(1) of the AsylG refers to the concept of 
‘applications for asylum’ which, according to the first sentence of 
Paragraph 13(2), read in conjunction with Paragraph 1(1), point 2, of the AsylG, 
includes recognition of entitlement to asylum and to international protection. 
According to the second sentence of Paragraph 13(2) of the AsylG, an application 
can be limited only to an application for recognition of international protection. 
Additionally, Paragraph 31(2) of the AsylG states in the first sentence that it is to 
be expressly determined whether the foreign national is granted refugee status or 
subsidiary protection. 
51 4.2.2. Since it appears conceivable under certain circumstances that an asylum 
procedure may have been conducted unsuccessfully in Denmark in terms of 
refugee status, but not in terms of subsidiary protection (in the event that, contrary 
to the view presented above, the equivalence of the level of protection is the 
decisive factor and such equivalence exists in terms of refugee status, but not in 
terms of subsidiary protection), annulment of the underlying decision might be 
limited to subsidiary protection status (see, in relation to an initial procedure 
conducted in Switzerland, Administrative Court, Minden, judgment of 
9 December 2019 – 10 K 995/18.A – [DE:VGMI:2019:1209. 10K995.18A.00]; 
Verwaltungsgericht Halle (Saale) [Administrative Court, Halle (Saale)], order of 
18 January 2019 – 4 B 5/19 – [DE:VGHALLE:2019:0118.4B5.19.00]; 
Verwaltungsgericht Lüneburg [Administrative Court, Lüneburg], order of 
14 March 2018 – 3 B 5/18 – [DE:VGLUENE:2018:0314.3B5.18.00]; in relation 
to an initial procedure conducted in Belgium, Administrative Court, Trier, 
judgment of 10 February 2016 – 5 K 3875/15.TR – 
[DE:VGTRIER:2016:0210.5K3875.15.TR.0A]). 
52 4.2.3. However, the referring court is inclined to take the view that it is not 
possible to differentiate between refugee status and subsidiary protection status 
(see Verwaltungsgericht Köln [Administrative Court, Cologne], judgment of 
21 February 2019 – 8 K 9975/17.A – [DE:VGK:2019:0221.8K9975.17A.00]). 
Although the consequence of this would be that a full secondary procedure would 
have to be conducted, even though a decision has already been adopted in 
Denmark which is no longer subject in part to challenge, the unequivocal wording 
of Article 33(1) and (2) of Directive 2013/32/EU (or Paragraph 29(1) of the 
AsylG) may prevent a split decision. 
53 This is compounded by the fact that only partial inadmissibility would give rise to 
different legal consequences. An inadmissibility decision on refugee status would 
REQUEST FOR A PRELIMINARY RULING OF 6. 8. 2021 – CASE C-497/21 
 
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give rise to the one-week deadline for leaving the country enacted in Paragraph 36 
of the AsylG in accordance with Paragraph 71a(4) of the AsylG and the action 
brought would not have suspensive effect and would have to be brought within 
one week in accordance with Paragraph 75(1) of the AsylG, whereas refusal of 
subsidiary protection status would give rise to the 30-day deadline for leaving the 
country enacted in Paragraph 38(1) of the AsylG and thus the action brought 
would have suspensive effect and would have to be brought within two weeks in 
accordance with Paragraph 75(1) of the AsylG. However, Article 46(4) of 
Directive 2013/32/EU requires Member States to provide for the right to an 
effective remedy to be exercised without time limits rendering such exercise 
impossible or excessively difficult. In particular, the differing time limits for court 
action may render more difficult the exercise of the right to effective protection. 
[…]