Judgment;Summary — ECLI:EU:C:2022:951
Date: 2022-12-01
Language of the case: German
Court formation: Tenth Chamber
Subject matter: Asylum policy;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights;Border checks
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Germany

Anonymised version 
Translation C-564/21 – 1 
Case C-564/21 
Request for a preliminary ruling 
Date lodged: 
14 September 2021 
Referring court: 
Verwaltungsgericht Wiesbaden (Germany) 
Date of the decision to refer: 
3 September 2021 
Applicant: 
BU 
Defendant: 
Federal Republic of Germany 
  
[…] 
VERWALTUNGSGERICHT WIESBADEN (ADMINISTRATIVE COURT, 
WIESBADEN) 
ORDER 
In the administrative proceedings 
BU, […] 
[…] 
[…] 
Applicant 
[…] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 3. 9. 2021 – CASE C-564/21 
 
2  
Anonymised version 
v 
Federal Republic of Germany, 
[…] 
Defendant 
concerning 
the right of asylum 
the Administrative Court, Wiesbaden […] 
[…] 
[…] made the following order on 3 September 2021: 
I. The proceedings are stayed. 
II. The proceedings are referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU with 
regard to the following questions: 
1. Does it follow from the right to a fair trial under Article 47 of the 
Charter that the administrative file to be submitted by the 
authority in the context of an inspection of files or a judicial 
review is to be submitted in such a way – even where it is in 
electronic form – that it is complete and paginated, and changes 
are therefore traceable? 
2. Do Articles 23(1) and 46(1) to (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 (OJ 2013 L 180, p. 60) 
preclude a national administrative practice according to which, as 
a general rule, the authority provides the asylum seeker’s legal 
representative and the court with only an extract taken from an 
electronic document management system and containing an 
incomplete, unstructured and non-chronological collection of 
electronic PDF files, whereby the latter do not have a structure or 
set out the sequence of events in chronological order, let alone 
reflect the complete content of the electronic file. 
3. Does it follow from Articles 11(1) and 45(1)(a) of Directive 
2013/32/EU that a decision must be signed by hand by the 
decision-maker of the determining authority, kept on file or 
served on the applicant also as a document signed by hand? 
FEDERAL REPUBLIC OF GERMANY 
 
3 
Anonymised version 
4. Is the handwritten form within the meaning of Articles 11(1) and 
45(1)(a) of Directive 2013/32/EU respected where the decision is 
signed by the decision-maker but then scanned and the original 
destroyed, that is to say, the decision exists in writing only to a 
certain extent? 
G r o u n d s 
I. 
1. CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN 
UNION (‘the Charter’) 
1 Article 8 of the Charter 
Protection of personal data 
1. Everyone has the right to the protection of personal data concerning him or 
her. 
2. Such data must be processed fairly for specified purposes and on the basis of 
the consent of the person concerned or some other legitimate basis laid down by 
law. Everyone has the right of access to data which has been collected concerning 
him or her, and the right to have it rectified. 
3. Compliance with these rules shall be subject to control by an independent 
authority. 
2 Article 47 of the Charter 
Right to an effective remedy and to a fair trial 
Everyone whose rights and freedoms guaranteed by the law of the Union have 
been violated has the right to an effective remedy before a tribunal in compliance 
with the conditions laid down in this Article. 
Everyone is entitled to a fair and public hearing within a reasonable time by an 
independent and impartial tribunal previously established by law. Everyone shall 
have the possibility of being advised, defended and represented. 
Legal aid shall be made available to those who lack sufficient resources in so far 
as such aid is necessary to ensure effective access to justice. 
3 Article 52 of the Charter 
Scope and interpretation of rights and principles 
REQUEST FOR A PRELIMINARY RULING OF 3. 9. 2021 – CASE C-564/21 
 
4  
Anonymised version 
1. Any limitation on the exercise of the rights and freedoms recognised by this 
Charter must be provided for by law and respect the essence of those rights and 
freedoms. Subject to the principle of proportionality, limitations may be made 
only if they are necessary and genuinely meet objectives of general interest 
recognised by the Union or the need to protect the rights and freedoms of others. 
2. Rights recognised by this Charter for which provision is made in the Treaties 
shall be exercised under the conditions and within the limits defined by those 
Treaties. 
3. In so far as this Charter contains rights which correspond to rights 
guaranteed by the Convention for the Protection of Human Rights and 
Fundamental Freedoms, the meaning and scope of those rights shall be the same 
as those laid down by the said Convention. This provision shall not prevent Union 
law providing more extensive protection. 
4. In so far as this Charter recognises fundamental rights as they result from the 
constitutional traditions common to the Member States, those rights shall be 
interpreted in harmony with those traditions. 
5. The provisions of this Charter which contain principles may be implemented 
by legislative and executive acts taken by institutions, bodies, offices and agencies 
of the Union, and by acts of Member States when they are implementing Union 
law, in the exercise of their respective powers. They shall be judicially cognisable 
only in the interpretation of such acts and in the ruling on their legality. 
6. Full account shall be taken of national laws and practices as specified in this 
Charter. 
7. The explanations drawn up as a way of providing guidance in the 
interpretation of this Charter shall be given due regard by the courts of the Union 
and of the Member States. 
4 Article 54 of the Charter 
Prohibition of abuse of rights 
Nothing in this Charter shall be interpreted as implying any right to engage in any 
activity or to perform any act aimed at the destruction of any of the rights and 
freedoms recognised in this Charter or at their limitation to a greater extent than is 
provided for herein. 
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 
(OJ 2013 L 180, p. 60) 
FEDERAL REPUBLIC OF GERMANY 
 
5 
Anonymised version 
5 Article 11 of DIRECTIVE 2013/32/EU 
Requirements for a decision by the determining authority 
1. Member States shall ensure that decisions on applications for international 
protection are given in writing. 
[…] 
6 Article 23 of DIRECTIVE 2013/32/EU 
Scope of legal assistance and representation 
1. Member States shall ensure that a legal adviser or other counsellor admitted 
or permitted as such under national law, who assists or represents an 
applicant under the terms of national law, shall enjoy access to the 
information in the applicant’s file upon the basis of which a decision is or 
will be made. 
[…] 
7 Article 45 of DIRECTIVE 2013/32/EU 
Procedural rules 
1. Member States shall ensure that, where the competent authority is 
considering withdrawing international protection from a third-country 
national or stateless person in accordance with Article 14 or 19 of Directive 
2011/95/EU, the person concerned enjoys the following guarantees: 
(a) to be informed in writing that the competent authority is reconsidering 
his or her qualification as a beneficiary of international protection and 
the reasons for such a reconsideration; and 
[…] 
[…] 
8 Article 46 of DIRECTIVE 2013/32/EU 
The right to an effective remedy 
1. Member States shall ensure that applicants have the right to an effective 
remedy before a court or tribunal, against the following: 
(a) a decision taken on their application for international protection, 
including a decision: 
REQUEST FOR A PRELIMINARY RULING OF 3. 9. 2021 – CASE C-564/21 
 
6  
Anonymised version 
[(i)] considering an application to be unfounded in relation to refugee 
status and/or subsidiary protection status; 
[(ii)] considering an application to be inadmissible pursuant to 
Article 33(2); 
[(iii)] taken at the border or in the transit zones of a Member State as 
described in Article 43(1); 
[(iv)] not to conduct an examination pursuant to Article 39; 
[(b)] a refusal to reopen the examination of an application after its 
discontinuation pursuant to Articles 27 and 28; 
[(c)] a decision to withdraw international protection pursuant to Article 45. 
[2.] Member States shall ensure that persons recognised by the determining 
authority as eligible for subsidiary protection have the right to an effective 
remedy pursuant to paragraph 1 against a decision considering an 
application unfounded in relation to refugee status. 
Without prejudice to paragraph 1(c), where the subsidiary protection status 
granted by a Member State offers the same rights and benefits as those 
offered by the refugee status under Union and national law, that Member 
State may consider an appeal against a decision considering an application 
unfounded in relation to refugee status inadmissible on the grounds of 
insufficient interest on the part of the applicant in maintaining the 
proceedings. 
3. In order to comply with paragraph 1, Member States shall ensure that an 
effective remedy provides for a full and ex nunc examination of both facts 
and points of law, including, where applicable, an examination of the 
international protection needs pursuant to Directive 2011/95/EU, at least in 
appeals procedures before a court or tribunal of first instance. 
[…] 
3. Asylgesetz (Law on asylum; ‘the AsylG’) 
(in the version published on 2 September 2008 (BGBl. I, p. 1 798), last amended 
by Article 9 of the Law of 9 July 2021 (BGBl. I, p. 2 467)) 
9 Paragraph 31 of the AsylG 
Decisions of the Federal Office on asylum applications 
FEDERAL REPUBLIC OF GERMANY 
 
7 
Anonymised version 
(1) Decisions of the Federal Office shall be given in writing. They shall contain 
a written statement of reasons. Decisions open to challenge shall be served 
on the parties concerned without undue delay … 
[…] 
4. Verwaltungsgerichtsordnung (Rules of Procedure of the 
Administrative Courts; ‘the VwGO’) (in the version published on 19 March 
1991 (BGBl. I, p. 686), last amended by Article 3a of the Law of 16 July 2021 
(BGBl. I, p. 3 026) 
10 Paragraph 99 
Authorities shall be obliged to submit certificates or files, to transmit electronic 
documents and to provide information. If disclosure of the contents of those 
certificates, files, electronic documents or that information would prove 
disadvantageous to the interests of the Federation or of a Land, or if the records 
must be kept secret by virtue of a law or by reason of their nature, the competent 
supreme supervisory authority may refuse to submit certificates or files, to 
transmit electronic documents or to provide information. 
[…] 
II. 
11 For over 15 years, the Bundesamt für Migration (Federal Office for Migration) 
has kept an electronic Bundesamtsakte (administrative file of the Federal Office) 
[…]. All documents (applications, transcripts of hearings, submitted documents 
and evidence and decisions/administrative rulings, and also certificates of service, 
etc.) are scanned into that electronic file and the scanned documents are usually 
destroyed afterwards (Dienstanweisung für das AVS Posteingang [Internal 
Instructions for the AVS (Asylverfahrenssekretariat – Asylum Procedure 
Secretariat) concerning incoming mail]: ‘As a general rule, all documents received 
can be destroyed after being scanned in a quality-assured manner.’). An exception 
is currently made for certificates of service, of which the original copy is kept. 
12 In that case, a ‘mailbox variant’ is used. This means that if a clerk has 
electronically processed a new, electronically available document, it will be added 
to the electronic file only after such processing. However, this takes place in such 
a way that it is not ‘sequentially filed’ in the existing record, but is entered 
somewhere in the system in accordance with the IT regulations. This means that 
the so-called electronic file may be subject to constant change. In addition, there 
used to be […] ‘document folders’ in which originals, such as the signed copy of 
the hearing, the signed decision (administrative ruling), and also originals of any 
foreign decisions, were kept. By internal directive of 1 September 2016, the 
management of the Federal Office decided to abolish the document folders (230 – 
7510/07-16, Aktualisierung der DA’en AVY und Asyl – Abschaffung der 
REQUEST FOR A PRELIMINARY RULING OF 3. 9. 2021 – CASE C-564/21 
 
8  
Anonymised version 
Dokumentenmappe (Update of the Internal Instructions for AVY and Asylum – 
Abolition of document folders). As of 1 September 2016, such document folders 
will no longer be created (ref. 230 7510/07-16, FAQ – Abolition of the document 
folder of 3 November 2016); ideally, they will be sent to the Ausländerbehörde 
(Authority responsible for foreign nationals) for storage (for example passports). 
13 In an asylum procedure before a court within the meaning of Article 46 of 
Directive 2013/32/EU, the authority is obliged, under the first sentence of 
Paragraph 99(1) of the VwGO, to produce documents or files, to transmit 
electronic documents and to provide information. The Federal Office for 
Migration and Refugees has so far complied with this in such a way that a printout 
containing the contents of the ‘MARiS’ electronic document management system 
was created as a single PDF document and the ‘pages’ of that printout were 
consecutively numbered (paginated). If the file was requested at different times a 
second time, it could be the case that the numbering was no longer identical, as 
further documents had been added at some point via the ‘Postkorbverfahren’ 
(mailbox procedure). 
14 In addition, before the document folders were dispensed with, they could be 
requested together with the original copies, but this is no longer possible (230 – 
7510/07- 16, Update of the Internal Instructions for AVY and Asylum – Abolition 
of document folders). Whether the ‘scans’ correspond to the original copies can 
only be presumed. Substitute scanning in such a way that national law accords the 
same evidential value to the scan as to the scanned original does not take place. 
There is no such documentation and signing – as would be required for legally 
secure scanning (‘The recipient of a document receives the scan folder and checks 
the quality of the scanned document’, according to the Dienstanweisung für das 
AVS – Scannen/Indizieren (Internal Instruction for the AVS – 
Scanning/Indexing)). 
15 In that context, the printed part of the file that was sent to the court does not 
include the entire content of the file that was kept electronically, because the 
electronic file kept within the framework of the MARiS procedure contains more 
extensive functions, with the result that additional information is available to the 
processor at the Federal Office, such as access data, history, links to other 
procedures concerning the asylum seeker, and also to family members. According 
to the internal guidelines of the Federal Office, only ‘PDF documents’ are issued. 
Although accesses are logged by the system and should at the same time 
document the release, for example for the evaluation of data carriers in accordance 
with Paragraph 15a of the AsylG, they are not submitted together with the PDF 
documents. 
16 It is also entirely possible to delete documents if they have not been ‘frozen’ 
beforehand. It is only from the history of the programme that it is then possible to 
see who and what the administrator had deleted. As in the case of access data and 
link functions[,] this is not included in a printed file and is not subsequently 
identifiable or accessible for the court or the lawyer (in relation to the MARiS 
FEDERAL REPUBLIC OF GERMANY 
 
9 
Anonymised version 
mask, see judgment of the Administrative Court, Wiesbaden of 9 August 2017 – 6 
K 808/17.WI.A). 
17 Recently, allegedly on the basis of an ‘agreement’ with the judicial administration, 
the file has been sent in the form of a collection of individual PDF documents, 
which are visible, in some kind of chronological order, on-screen at the courts by 
means of a programme called ‘XJustiz Viewer’ (see also 
https://ervjustiz.de/viewer-fuer-xjustiz-akten). The referring court was unable to 
ascertain who ultimately initiated that form of transmission and presentation and 
who is responsible for it. The Hessischer Verwaltungsgerichtshof (Administrative 
Court, Hesse) has yet to respond to an inquiry sent to it in that regard on 2 July 
2021. However, that issue is no longer relevant to the question of access to files. 
18 For a lawyer, however, the outcome of all these circumstances is that if he or she 
wants to be able to read the PDF documents, at least in that non-paginated but 
somewhat sorted structure, he or she has to install a computer programme, the 
XJustiz file viewer, on his or her computer. This means that that so-called 
electronic file is not accessible to the lawyer without obstacles and – as is also the 
case for the court – is merely what has been created as individual PDFs. There is 
no longer any consecutive numbering/pagination anywhere in the material. 
19 The applicant’s lawyer objects to this and requests, in the action before the 
referring court […], by his written submission of 21 April 2021, at least a 
complete administrative file as a single PDF file with paginated pages. The 
judicial administration and the Federal Office for Migration and Refugees have 
refused to comply with this, for which reason he has lodged the present urgent 
application. 
20 The Federal Office takes the view that a file does not necessarily have to be 
transmitted in the same format. The content of the files can be made available for 
retrieval, but the Federal Office does not offer that possibility. A right of access to 
files merely entitles the applicant to access the files. With regard to the structure, 
it is reasonable for a lawyer to download a computer programme which is 
available free of charge. Pagination would hamper the effectiveness of a digitally 
structured file exchange system. The order of the documents is determined by the 
XJustiz structural data set. 
III. 
21 The referring court considers that the lawyer’s complaint is justified and, given 
the fundamental importance of the questions arising from it, refers those questions 
to the Court, since they must be resolved in a uniform manner with regard to an 
authority operating throughout Germany, but also in respect of the judicial 
administrations in all the Länder. This also raises the issue of the resulting 
working method of the judge appointed to rule on the matter, in the context of his 
or her judicial activity, and, above all, the (incomplete) information which is 
REQUEST FOR A PRELIMINARY RULING OF 3. 9. 2021 – CASE C-564/21 
 
10  
Anonymised version 
provided to him or her from the electronic file and which may form the basis for a 
decision in court proceedings. 
22 The referring court takes the view that the electronic Federal Office file does not 
comply with proper file management, as the entire electronic file is not accessible 
and is not submitted in its entirety in accordance with Paragraph 99(1) of the 
VwGO. Files serving as a storage medium for internal administrative knowledge 
ensure the functioning of the administration and enable the verification and review 
of acts of public authorities (see […] Administrative Court, Wiesbaden, judgment 
of 28 December 2016, Case 6 K 332/16.WI – final). In a State governed by the 
rule of law, files ensure that acts of public authorities are transparent and 
reviewable, thereby also enabling the democratic State governed by the rule of 
law to discharge its obligation of accountability […]. Thus, the keeping of files in 
the administration is an implicit requirement of a functioning administration and is 
presumed to be part of the authority’s duty, deriving from the rule of law under 
the Charter of Fundamental Rights (see also Article 20(3) of the Grundgesetz 
(Basic Law, ‘the GG’), objectively to document the material facts of the course of 
events to date, even in the absence of express legal provision to that effect 
(Bundesverfassungsgericht (Federal Constitutional Court; ‘BVerfG’), NJW 1983, 
p. 2 135 […]). In that respect, the enforcement of the law as a central task of 
administrative action is inconceivable without documentation of the individual 
administrative processes (BVerfG, NJW 1983, p. 2 135). 
23 Moreover, control of the executive by the (administrative) judiciary, as required 
under constitutional law and guaranteed from the perspective of rights of 
individuals by Article 19(4) of the GG, is possible in the first place only if 
administrative processes are presented in the prescribed manner. The withholding 
of files makes it more difficult for the courts to fulfil their remit of exercising 
scrutiny under Article 47 of the Charter (Articles 19(4) and 92 of the GG) and 
forms obstacles to the judicial enforcement of rights by parties seeking justice – 
obstacles which they cannot remove themselves. 
24 The lack of possibilities under ordinary law for the court to compel the 
administration – for example by means of enforceable orders – to produce files is 
attributable to the legislature’s presumption that the administration conducts itself 
lawfully. Otherwise, it would have created the possibility to obtain them by court 
order (as is possible in criminal proceedings), for example by means of searches 
of premises and the like. 
25 If the legislature proceeds on the presumption that the administration is ‘law-
abiding’, however, the latter must ensure full and rapid fulfilment of the obligation 
to produce files in accordance with the rule of law (Administrative Court, 
Wiesbaden, judgment of 7 April 2017 – 6 K 429/17.WI.A – juris, paragraph 30 et 
seq.). Moreover, this cannot depend on the effectiveness of digital ‘export of 
files’. 
FEDERAL REPUBLIC OF GERMANY 
 
11 
Anonymised version 
26 There is also the matter of metadata (logs of accesses to the file within the 
authority, changes made to the file, which may be caused inter alia by the removal 
or resubmission of documents), which, even in the case of a full PDF printout, are 
not made available to either the court or the lawyer. The ‘MARiS file’ on the 
screen interface also displays any links to procedures involving family members 
or previous procedures, biometric data and other data that are not sent and 
disclosed with the ‘file’, despite the fact that all of those things are present in the 
‘file management system’ and thus make up the file as such. The court is denied 
the complete file for that reason alone (see, by way of example, order of the 
Verwaltungsgericht Darmstadt (Administrative Court, Darmstadt) of 
15 September 2014; in relation to the deficient production of files by the Federal 
Office for Migration and Refugees, see Administrative Court, Wiesbaden, 
judgment of 9 August 2017 – 6 K 808/17.WI.A). 
27 However, a fair trial includes access to the complete file of the authority, which 
ultimately means that online access to the complete file as it exists in the 
authority’s systems would have to be possible. Only then is access ‘to the 
information in the applicant’s file’ available to the legal adviser in accordance 
with Article 23 of DIRECTIVE 2013/32/EU. The complete file would be 
submitted to the court in that case. Anything other than that is obviously 
something less and, in the view taken by the referring court, infringes Article 23 
of DIRECTIVE 2013/32/EU and the right to a fair hearing under the second 
paragraph of Article 47 of the Charter (see also, in that respect, BVerfG, decision 
of 4 May 2021, 2 BvR 277/19). 
28 If the file were to be regarded as an ‘electronic’ document, that electronic 
document must also be made available in the same way and as a single unit to all 
parties involved in an asylum procedure. Furthermore, the requirement imposed 
on the lawyer by the judicial administration and the Federal Office, to install an 
additional programme in order to obtain a more meaningful presentation, is likely 
to lead to an infringement of Article 32(1)(b) of the GDPR, according to which 
the ability to ensure the ongoing confidentiality, integrity, availability and 
robustness of processing systems and services in connection with the processing 
must be ensured by the controller on a permanent basis. This is because the lawyer 
is required blindly to install a programme […] whose functions are not disclosed 
or publicly accessible. In addition, a Windows operating system is most likely 
required in order for XJustiz to function, as the programme does not run in a 
platform-independent manner and cannot, for example, be operated via a Linux 
operating system. Having regard, in particular, to the ‘third-country issue’ and 
possible data transfers to the USA in the Windows operating system (Win10), 
such a thing cannot and must not be demanded of a lawyer (see, in relation to that 
problem, CJEU, judgment of 16 July 2020, Schrems II, C-311/18, 
EU:C:2020:559). It would subject the lawyer to problems that he or she might not 
have otherwise. 
29 In addition, it cannot be ruled out that the unsorted collection of PDF documents 
may be presented to the court and the lawyer in different ways, with the result that 
REQUEST FOR A PRELIMINARY RULING OF 3. 9. 2021 – CASE C-564/21 
 
12  
Anonymised version 
‘one’ file with the same content and in the same form is not ensured and therefore 
does not exist. That issue is quite independent of the question of what else is 
accessible via the screen interface at the authority and what information exists but 
has not been produced. 
30 It is true that, if properly kept files are not disclosed to the courts in the manner 
required by the rule of law (see, in that respect, Administrative Court, Wiesbaden, 
judgment of 9 August 2017 – 6 K 808/17.WI.A), any resulting deficiencies with 
regard to the transparency and reviewability of administrative action will be to the 
detriment of the authority keeping the files (see Finanzgericht Düsseldorf (Finance 
Court, Düsseldorf), judgment of 7 March 2017 – 10 K 2424/15 Kg, AO, 
paragraph 33). However, this cannot be in the interests of a fair asylum procedure. 
Rather, the entire basis for the decision (the file) must be available to the court and 
the lawyer. 
31 The referring court takes the view that the right to a fair trial under Article 47 of 
the Charter requires that – even if it is kept in electronic form – the administrative 
file to be produced by the authority must be produced or made accessible in such a 
way that it is complete and paginated, and, therefore, changes can be identified, 
and that it corresponds to what is kept by the authority. 
32 It is only if the lawyer is fully informed of the contents of the file that he or she 
can perform his or her task vis-à-vis the client, asylum seeker, and indeed the 
court. In that respect, Article 23(1) of Directive 2013/32/EU provides that the 
applicant’s legal counsellor is to enjoy access to the information in the applicant’s 
file. There is no mention of ‘part[’] of the information, with the result that the 
provision is to be understood as meaning that all information from the file which 
forms the basis of the decision and the proceedings must be made accessible. With 
a view to ensuring a fair trial, the authorised representative now seeks, by the 
present urgent application, to enforce the application for access to files which was 
made in the main proceedings. 
33 In addition, ‘originals’ are no longer presented to the court. According to 
Article 11 of DIRECTIVE 2013/32/EU, which was transposed by the first 
sentence of Paragraph 31(1) of the AsylG, decisions on asylum are to be given in 
writing. However, the original copy of the decision bearing the signature of the 
decision-maker must be scanned and destroyed after scanning (230 – 7510/07-16, 
Update of the Internal Instructions for AVY and Asylum – Abolition of the 
document folder). Thus, the original copy of the signed decision (administrative 
ruling) no longer exists; only an electronic copy exists. 
34 The term ‘in writing’ for the purposes of Article 11(1) of DIRECTIVE 
2013/32/EU should be understood to mean the handwritten signature of the 
decision-maker. National law regulates the written form in Paragraph 126(1) of 
the Bürgerliches Gesetzbuch (Civil Code, ‘the BGB’), which has the formal 
heading ‘Written form’. 
FEDERAL REPUBLIC OF GERMANY 
 
13 
Anonymised version 
‘If the written form is prescribed by law, the document must be signed by the 
author in his or her own hand or by means of a notarised mark.’ 
35 The Court of Justice has also held, inter alia by judgment of 28 May 2020 
(C-309/19 P, EU:C:2020:401), that a scanned signature does not constitute an 
original signature and, therefore, an original document had not been added to the 
file at issue in that case. Rather, the requirement of a handwritten signature had 
been asserted and such a signature is to be regarded as not existing in the case of a 
scan. 
36 However, the signature could also be provided by means of a qualified electronic 
signature (Article 25(2) of REGULATION (EU) No 910/2014 OF THE 
EUROPEAN PARLIAMENT AND OF THE COUNCIL of 23 July 2014 on 
electronic identification and trust services for electronic transactions in the 
internal market and repealing Directive 1999/93/EC). The Federal Office for 
Migration and Refugees does not work with such signatures, however. That being 
the case, attaching a signature verification would not be sufficient either (CJEU, 
judgment of 28 May 2020, C-309/19 P, EU:C:2020:401). 
37 Thus, the referring court is unable to recognise the decision granting or rejecting 
an asylum application as being in the ‘written form’ if only one copy of the 
‘administrative ruling’ is produced by means of scanning and the original is 
destroyed. At best, such a document could be said to be in the written form only to 
a certain extent. However, there are doubts as to whether that corresponds to the 
written form required by DIRECTIVE 2013/32/EU. This is because, at the time 
when the file is submitted to the court, the ‘administrative ruling’ exists only as a 
copy. Although copies may have the legal appearance of a copy of the original, 
their integrity in terms of content is not certain […]. 
38 This raises the question as to whether a copy of a decision/administrative ruling 
which forms the basis of a judicial review can ultimately be annulled at all in the 
event of a judicial decision upholding an action brought against it, since the 
original administrative ruling does not exist[,] or whether, in such a case, the 
authority must always be obliged to issue a new written decision. 
39 If the latter were the case, there would be no need for an ‘administrative file’ of 
any kind from the Federal Office for Migration and Refugees in the present case, 
since there is no written decision of the authority. In that case, the lawyer’s 
request to have a complete file made accessible to him would have to be refused 
and the Federal Office for Migration and Refugees would have to be obliged to 
issue a new administrative ruling in the main proceedings owing to the lack of a 
decision. 
IV. 
40 The order is not open to appeal. 
[…]