Opinion of the Advocate General — ECLI:EU:C:2024:82
Date: 2024-01-25
Language of the case: German
Subject matter: Asylum policy;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights;Border checks
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-753/22 – 1 
Case C-753/22 
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: 
12 December 2022 
Referring court: 
Bundesverwaltungsgericht (Germany) 
Date of the decision to refer: 
7 September 2022 
Applicant and appellant: 
QY 
Defendant and respondent: 
Federal Republic of Germany 
  
Subject matter of the main proceedings 
Binding effect of the granting of refugee status by one Member State of the 
European Union on another Member State 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU, in particular 
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) (‘Directive 2013/32’) 
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) (‘Directive 2011/95’) 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-753/22 
 
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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 (OJ 2013 L 180, p. 31, corrigendum OJ 2017 L 49, p. 50) (Dublin 
III Regulation) (‘Regulation No 604/2013’) 
Charter of Fundamental Rights of the European Union (OJ 2012 C 326, p. 391) 
(‘the Charter’) 
Question referred for a preliminary ruling 
In the event that a Member State may not exercise the power conferred by 
Article 33(2)(a) of Directive 2013/32 to reject as inadmissible an application for 
international protection with a view to the granting of refugee status in another 
Member State because living conditions in that Member State would expose the 
applicant to a serious risk of inhuman or degrading treatment within the meaning 
of Article 4 of the Charter, must the second sentence of Article 3(1) of Regulation 
No 604/2013, the second sentence of Article 4(1) and Article 13 of Directive 
2011/95 as well as Article 10(2) and (3) and Article 33(1) and (2)(a) of Directive 
2013/32 be interpreted as meaning that the fact that refugee status has already 
been granted prevents the Member State from carrying out an examination of the 
application for international protection submitted to it that is unbiased as to the 
outcome, and obliges the Member State to grant the applicant refugee status 
without examining the substantive conditions for that protection? 
Provisions of European Union law relied on 
Directive 2013/32, in particular Article 10(2) and (3), Article 33(1) and 
Article 33(2)(a) 
Directive 2011/95, in particular the second sentence of Article 4(1) and Article 13 
Regulation No 604/2013, in particular the second sentence of Article 3(1) 
Article 4 of the Charter 
Provisions of national law relied on 
Asylgesetz (German Law on Asylum; ‘the AsylG’) 
Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von 
Ausländern im Bundesgebiet (German Law on the Residence, Economic Activity 
and Integration of Foreigners in the Federal Territory) (Law on Residence; ‘the 
AufenthG’) 
FEDERAL REPUBLIC OF GERMANY 
 
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Facts and procedure in the main proceedings 
1 The applicant, who has been recognised by the Bundesamt für Migration und 
Flüchtlinge (Federal Office for Migration and Refugees; ‘the Federal Office’) as 
being entitled as a beneficiary of subsidiary protection status, has applied for 
refugee status. 
2 The applicant, who was born in 1999, is a Syrian national who was already 
granted refugee status in Greece in 2018. She cannot return to Greece because, 
according to the final and binding decision of an administrative court, she would 
face a serious risk of inhuman or degrading treatment in Greece within the 
meaning of Article 4 of the Charter. 
3 The Federal Office granted her subsidiary protection by administrative ruling of 
1 October 2019 and rejected her application for refugee status. 
4 The Verwaltungsgericht (Administrative Court, Germany) dismissed the action on 
this point on the grounds that the claim asserted could not be based on the mere 
fact that the applicant had been granted refugee status in Greece. The 
Administrative Court argued that the applicant’s application was unfounded 
because she was not threatened with persecution in Syria. 
5 In support of the appeal brought by the applicant before the referring court, her 
main argument is that the defendant is bound by the refugee status that has already 
been granted. 
Reasoning in the request for a preliminary ruling 
6 The success of this appeal depends on a decision by the Court of Justice of the 
European Union (‘the Court of Justice’) on the interpretation of the treaties. 
7 In German law, the legal assessment of the contested decision of the Federal 
Office is governed by the AsylG and the AufenthG. 
8 Under national law, the applicant is not entitled to be granted refugee status 
pursuant to the first half-sentence of Paragraph 3(4) in conjunction with 
Paragraph 1 AsylG. However, without a preliminary ruling from the Court of 
Justice, the referring court cannot determine whether that understanding of the 
aforementioned provisions of national law is compatible with the provisions of 
EU law mentioned in the question referred for a preliminary ruling. 
9 The question referred for a preliminary ruling, as set out above, therefore requires 
clarification by the Court of Justice because it has neither been clarified in its 
previous case-law nor is the answer obvious. 
10 The applicant is not entitled to be granted refugee status under national law. Given 
the individual situation of the applicant, such a claim does not arise from the first 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-753/22 
 
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half-sentence of Paragraph 3(4) in conjunction with Paragraph 1 AsylG. In the 
contested judgment of the Administrative Court it was correctly stated that the 
applicant left Syria without there being any persecution. The actual conditions in 
Syria are considered to be such that, in the event of a – hypothetical – return, it is 
unlikely that she would be at risk of persecution. 
11 In accordance with national law, the applicant is not entitled to have her claim 
granted simply because she was granted refugee status in Greece. Pursuant to the 
second sentence of Paragraph 60(1) AufenthG, foreign recognition as a refugee 
granted by a certain State also precludes deportation to that State for Germany. 
However, that does not mean that a person has a right to be granted refugee status 
again. Paragraph 3(3) AsylG does not impose any additional obligation on the 
Federal Office since its requirements are not met and there are no grounds for an 
analogous application of this provision. 
12 The referring court is uncertain whether, in cases such as the one at hand, the 
provisions of EU law mentioned in the question referred for a preliminary ruling 
preclude the application for international protection submitted by the applicant 
from being examined in a manner that is unbiased as to the outcome. In the view 
of the referring court, there is no binding effect of the granting of refugee status by 
one Member State of the European Union on another Member State on the basis 
of primary EU law. Whether this could arise from secondary EU law, however, 
requires clarification by the Court of Justice. 
Binding effect based on primary European Union law 
13 Pursuant to the first sentence of Article 78(1) TFEU, the European Union is to 
develop a common policy on asylum, subsidiary protection and temporary 
protection. For this purpose, the European Parliament and the Council are, 
pursuant to Article 78(2) TFEU, to adopt measures for a common European 
asylum system (‘CEAS’). This includes, inter alia, a uniform status of asylum for 
nationals of third countries, valid throughout the European Union and a uniform 
status of subsidiary protection for nationals of third countries who, without 
obtaining European asylum, are in need of international protection 
(Article 78(2)(a) and (b) TFEU). Neither those provisions nor other provisions of 
Article 77 et seq. TFEU contain any indications that the granting of refugee status 
in one Member State precludes an examination of an application for international 
protection filed in another Member State that is unbiased as to the outcome. 
Rather, there has been no mutual recognition of positive asylum decisions to date. 
That is in line with the view taken by the European Commission. 
14 Moreover, the Court of Justice has developed the ‘principle of mutual trust 
between the Member States’ from Articles 2 and 3 TEU and Articles 67 and 82(1) 
TFEU. That principle requires, with regard to the area of freedom, security and 
justice, each of those States, save in exceptional circumstances, to consider all the 
other Member States to be complying with EU law and particularly with the 
fundamental rights recognised by EU law (judgments of the Court of Justice of 
FEDERAL REPUBLIC OF GERMANY 
 
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19 March 2019, Ibrahim and Others, C-297/17, C-18/17, C-319/17 and C-438/17, 
EU:C:2019:219, paragraph 83 et seq., and of 22 February 2022, Commissaire 
général aux réfugiés et aux apatrides [Family unity – Protection already granted], 
C-483/20, EU:C:2022:103, paragraph 28). 
15 However, that does not entail any binding effect on the granting of refugee status 
obtained in another Member State. The fact that the European Union has not yet 
created a uniform status of protection within the meaning of Article 78(2)(a) and 
(b) TFEU precludes such a far-reaching legal consequence. The examination of 
whether or not the conditions of the application for international protection have 
been met therefore remains a matter for the Member State in which that 
application was made. 
Binding effect based on secondary European Union law 
16 Nor is there any rule of procedural or substantive refugee law in secondary EU 
law which expressly requires that the granting of refugee status by one Member 
State be binding on the asylum procedure of another Member State. 
17 The Court of Justice has not yet ruled on the question whether a binding effect of 
recognition decisions of Member States in asylum proceedings can be derived 
from the general principle of EU law that the substance of an applicant’s asylum 
application is examined by a single Member State only, which is determined as 
the Member State responsible in accordance with the criteria of Chapter III of 
Regulation No 604/2013. The second sentence of Article 3(1) of Regulation 
No 604/2013 constitutes an expression of this principle. 
18 According to the case-law of the Court of Justice, this principle is a central 
principle of the Dublin III Regulation, on which the CEAS is generally based 
(judgment of the Court of Justice of 2 April 2019, H. and R., C-582/17 and 
C-583/17, EU:C:2019:280, paragraph 78). Therefore, it could also apply in cases 
which – like the applicant’s case – are not assessed under Regulation 
No 604/2013. Consequently, a substantive examination in a single Member 
State – irrespective of the outcome of the examination – could apply in all other 
Member States. 
19 Nor does the wording of the second sentence of Article 4(1) and Article 13 of 
Directive 2011/95 preclude an interpretation that recognition in all Member States 
of the European Union could depend solely on the granting of refugee status in 
one Member State. 
20 In addition, the provisions of Directive 2013/32 must be taken into account, and in 
particular the second sentence of the 43rd recital, Article 10(2) and (3) as well as 
Article 33(1) and Article 33(2)(a). 
21 The option granted to the Member States by Article 33(2)(a) of Directive 2013/32 
to waive a decision on the merits in the event that another Member State has 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-753/22 
 
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already granted international protection – provided for in the Federal Republic of 
Germany in Paragraph 29(1) No 2 AsylG – could be understood as an expression 
of the principle of a single substantive examination of an asylum application in a 
single Member State of the European Union. 
22 However, in a case such as the one at hand, where the power under 
Article 33(2)(a) of Directive 2013/32 cannot be exercised because there would 
otherwise be a risk of an infringement of Article 4 of the Charter, the question 
arises as to whether a recognition decision by one Member State can have a 
binding effect on all Member States and/or as to what the legal consequences are. 
23 As far as that question is concerned, the referring court finds the opinion of 
Advocate General Pikamäe (Opinion of Advocate General Pikamäe in 
Commissaire général aux réfugiés et aux apatrides [Family unity – Protection 
already granted], C-483/20, EU:C:2021:780, point 64), on which the Court of 
Justice has not yet expressed a view, to be convincing. According to this opinion, 
the Member State must treat the third-country national concerned as a first-time 
applicant for international protection, irrespective of the protection already 
granted to him or her by another Member State. In order not to deprive 
Article 33(2)(a) of Directive 2013/32 of all practical effect, the fact that 
international protection has already been granted by a first Member State cannot 
again be taken into account in any way in the context of the examination of the 
application on the substance. 
24 However, certain indications for a binding effect of the granting of refugee status 
may also arise from the fact that a denial of this legal consequence could lead to a 
circumvention of the special rules on the cessation, exclusion and revocation of 
refugee status pursuant to Articles 11, 12 and 14 of Directive 2011/95. 
Nonetheless, the fact that the asylum procedure in question is not concerned with 
the cessation or revocation of the refugee status granted in the first Member State, 
but with whether an asylum applicant can obtain further protection with the 
associated rights in the second Member State in addition to the refugee status 
already granted to her in the first Member State, speaks against such a risk of 
circumvention. 
The Court of Justice’s previous case-law 
25 The referring court is convinced that the previous case-law of the Court of Justice 
cannot be relied on with certainty to answer the question raised with regard to the 
binding nature one way or the other. The decision of 13 November 2019, Hamed 
and Omar (C-540/17 and C-541/17, not published, EU:C:2019:964) does not 
contain sufficiently clear findings on the manner of how a new asylum procedure 
should be conducted. 
26 In paragraph 42 of the decision, the Court of Justice states: ‘Moreover, as is 
apparent from the reference for a preliminary ruling, although German law offers 
some protection to an applicant who cannot be returned to a Member State 
FEDERAL REPUBLIC OF GERMANY 
 
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because of a serious risk of being subjected to inhuman or degrading treatment 
contrary to Article 4 of the Charter in the Member State which has already granted 
him or her refugee status, it does not provide for the recognition of that status and 
the grant of the rights attaching thereto in Germany without going through a new 
asylum procedure.’ 
27 In so far as, on the one hand, the Court of Justice refers to a ‘new’ asylum 
procedure, this is an argument in favour of an examination that is unbiased as to 
its outcome in every respect. On the other hand, in the further course of the cited 
sentence, the Court of Justice focuses on the rights attaching to refugee status, 
namely the status-related legal consequences of recognition. Such a finding of the 
Court of Justice might also be understood as an argument in favour of a binding 
effect of the initial refugee recognition by one Member State on other Member 
States.