Opinion of the Advocate General — ECLI:EU:C:2025:821
Date: 2025-10-23
Language of the case: German

summary proceedings for interim relief. If 
an administrative court issues orders pursuant to Article 80(5) or Article 123 of 
the Verwaltungsgerichtsordnung (Code of Administrative Court Procedure) or the 
Federal Office suspends the transfer pursuant to Article 80(4) of the Code of 
Administrative Court Procedure, leading to an interruption of the transfer period, 
benefits may no longer be restricted. However, one of the listed cases does not 
apply here, as the administrative court proceedings relating to the period in 
dispute were unsuccessful. FB was also informed about the material assistance 
that would be provided in Romania in the context of reception and, finally, about 
the possibility of a voluntary departure. 
15 The fulfilment of subjective criteria by the applicant is not a further requirement, 
because the restriction of benefits on the basis of Article 1a(7) of the Law on 
benefits for asylum seekers is not to be understood as a sanction for failing to 
leave the country. Contrary to the opinion of the the Bayerische 
Landessozialgericht (Higher Social Court, Bavaria) as the court of lower instance, 
the restriction does not require the applicant to be represented, neither with regard 
to entry nor to a failure to leave the country following the decision of the Federal 
Office in the procedure under the Dublin III Regulation. 
16 As a legal consequence, FB’s entitlement to basic benefits (Article 3 of the Law 
on benefits for asylum seekers) lapses in part for the period from 1 January 2022 
to 22 February 2022 under simple national law, and the entitlement to other 
benefits according to the circumstances in the individual case (Article 6 of the 
Law on benefits for asylum seekers) lapses in full because the transfer period 
under the Dublin III Regulation ran during the period in dispute. In the facility in 
which he lives, he only receives benefits in kind that cover his needs for food, 
accommodation, including heating, and personal care and health. He does not 
receive benefits for clothing and for household goods and consumables on the 
basis of the district's decision in this individual case, which he has not challenged. 
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In addition, he receives sickness benefits in accordance with Article 4 of the Law 
on benefits for asylum seekers. By contrast, the benefits described in Article 3(1), 
clause 2 of the Law on benefits for asylum seekers to cover necessary personal 
needs do not apply at all. 
17 B. FB fell within the scope of application of the Reception Conditions Directive, 
as defined in Article 3(1) of the Directive, during the period in dispute, even 
though the proceedings conducted in Germany were concluded with the decision 
to transfer FB to Romania, as provided for in the Dublin III Regulation, and he 
was therefore no longer authorised to remain in Germany (CJEU of 27.9.2012 – 
C-179/11 – paragraph 43 ff; CJEU of 19.6.2018 – C-181/16 – paragraph 63 in 
each case on Directive 2003/9/EC on the minimum standards for the reception of 
asylum seekers in Member States). He is not a person in need of protection within 
the meaning of Article 21 of the Reception Conditions Directive. The Senate is 
therefore faced with the question of the compatibility of the regulations with 
European law, in particular whether the level of benefits provided for in national 
law for applicants during the transfer period under the Dublin III Regulation 
fulfils the requirements of Article 17(2) and (5) of the Reception Conditions 
Directive or whether Article 20 of the Reception Conditions Directive applies. 
18 According to Article 17(2) of the Reception Conditions Directive, the material 
reception conditions must correspond to an adequate standard of living that 
ensures the subsistence and protection of the physical and mental health of 
applicants and, in accordance with Article 2(g) of the Reception Conditions 
Directive, provide accommodation, food and clothing in the form of benefits in 
kind or in cash benefits or vouchers or a combination thereof, as well as cash 
benefits to cover daily needs. 
19 It follows from the case-law of the CJEU that the financial support must be 
sufficient for a standard of living that guarantees the health and subsistence of 
applicants (CJEU of 27.2.2014 – C-79/13 – paragraph 37 on the material 
reception conditions pursuant to Article 13(2) of Directive 2003/9/EC). The 
protection of human dignity must be guaranteed without restriction (Article 1 of 
the Charter of Fundamental Rights; see 35th Recital to the Reception Conditions 
Directive). In that regard, respect for human dignity within the meaning of 
Article 1 of the Charter of Fundamental Rights requires the person concerned not 
finding himself or herself in a situation of extreme material poverty that does not 
allow that person to meet his or her most basic needs such as a place to live, food, 
clothing and personal hygiene, and that undermines his or her physical or mental 
health or puts that person in a state of degradation incompatible with human 
dignity (see CJEU of 12.11.2019 – C-233/18 – paragraph 46 with reference to 
CJEU of 19.3.2019 – C-163/17). In any case – even in the event of a sanction – 
the material benefits of accommodation, food and clothing must be guaranteed at 
all times (see CJEU of 12.11.2019 – C-233/18 – paragraph 56). 
20 The decision of the CJEU of 12 November 2019 – C-233/18 – was issued on 
sanctions within the meaning of Article 20 of the Reception Conditions Directive. 
LANDKREIS SCHWEINFURT 
 
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It has not yet been clarified by the case-law of the CJEU as to whether an 
adequate standard of living within the meaning of Article 17(2) and (5) of the 
Reception Conditions Directive guarantees (more extensive) needs that deviate 
from the minimum level in accordance with Article 20 of the Reception 
Conditions Directive. If the CJEU were to affirm this, the question that has not yet 
been clarified in the case-law of the CJEU arises as to whether a national 
regulation that provides for accommodation, food, personal care, health and 
treatment in the event of illness and, depending on the circumstances of the 
individual case, clothing and household goods and consumables, reaches the 
minimum level described in Article 17(2) and (5) of the Reception Conditions 
Directive. 
21 In this context, the Senate is also faced with the question of whether Article 17(5), 
clause 2, second alternative of the Reception Conditions Directive allows a further 
differentiation to be made for benefits to applicants depending on their expected, 
purely short-term duration of stay or their status as persons obliged to leave the 
country. This would allow the Member State to grant applicants only the level 
described in question 1 for a maximum of 6 months within the transfer period 
under the Dublin III Regulation, while other applicants would receive higher 
benefits – albeit reduced benefits compared with nationals. The German legislator 
clearly assumes that this is permissible for the implementation of decisions in the 
Common European Asylum System, because the benefits are only intended to 
bridge the gap of a few weeks prior to departure. 
22 In the event that the national benefit level described falls short of the benefits to 
be guaranteed under Article 17(2) and (5) of the Reception Conditions Directive, 
the Senate is faced with the questions formulated in point 2. In the opinion of the 
Senate, the restriction of entitlement provided for in the national provision can 
only be justified if the requirements of Article 20(1), clause 1(c) of the Reception 
Conditions Directive are met (see CJEU of 27.9.2012 – C-179/11 – paragraph 57 
on Article 16 of Directive 2003/9/EC). Other conditions under Article 20 of the 
Reception Conditions Directive were not met from the outset. 
23 In such cases, the applicability of Article 20(1), clause 1(c) of the Reception 
Conditions Directive requires a subsequent application within the meaning of 
Article 2(q) of Directive 2013/32/EU (Asylum Procedures Directive). According 
to Article 2(q) of Directive 2013/32/EU, ‘subsequent application’ means 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)’. 
24 Neither Article 20 (1), clause 1(c) of the Reception Conditions Directive nor 
Article 2(q) of the Asylum Procedures Directive contain any indication as to 
whether a subsequent application only exists if both applications are lodged and 
examined in the same Member State or also in cases in which several Member 
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States are involved and in which the earlier asylum procedure was conducted by a 
Member State other than the one in which the subsequent application is lodged 
(see in this sense the Opinion of the Advocate General of 27 June 2024 on 
C-123/23; left open CJEU of 20 May 2021 – C-8/20 – paragraphs 28 ff. and 40). 
It is also unclear whether the same conditions apply in proceedings under the 
Dublin III Regulation. 
25 In the present legal dispute, only the application first submitted in Germany at the 
end of August 2021, at the latest on 6 September 2021, can be considered as a 
subsequent application, after the applicant had previously submitted an application 
in Romania on 6 August 2021 and (tacitly) withdrawn it. It has not yet been 
determined when the application submitted in Romania was (tacitly) withdrawn 
and when a decision was made in accordance with Article 27 or Article 28 of the 
Asylum Procedures Directive (probably not until 22 September 2021). 
26 If a subsequent application can also exist if the previous asylum procedure was 
carried out by a Member State other than the one in which the subsequent 
application is being made, it has not yet been clarified whether the existence of a 
subsequent application in these cases is prevented if the applicant has previously 
lodged an application for international protection in another Member State and the 
procedure was discontinued by the other Member State because the applicant did 
not pursue the procedure in that Member State, or the application was tacitly or 
formally withdrawn. The question also arises as to which point in time is relevant 
for the applications (see also Case C-123/23 pending before the CJEU) and, in 
particular, whether the application in the second Member State (in this case in 
Germany) prior to the formal conclusion of the procedure under Article 27 or 
Article 28 of the Asylum Procedures Directive (in this case in Romania) can be 
considered a subsequent application within the meaning of Article 20(1), clause 
1(c) of the Reception Conditions Directive. 
27 In the event that Article 20(1), clause 1(c) of the Reception Conditions Directive 
applies in the situation underlying the dispute in the main proceedings, the Senate 
assumes that a restriction to benefits to cover the need for food and 
accommodation including heating as well as personal care and health and benefits 
in the event of illness and – depending on the individual case – clothing and 
household goods and consumables fulfils the requirements of Article 20(5) and (6) 
of the Reception Conditions Directive. The CJEU has not yet ruled on this issue 
outside of the sanctions provision in Article 20(3) of the Reception Conditions 
Directive. When assessing the restriction following a subsequent application, the 
Senate considers that the individual can significantly shorten the period of 
restriction by voluntarily leaving the country, which would be reasonable under 
the Common European Asylum System. The Federal Office has informed the 
Senate that if there is a serious desire to leave the country, the necessary official 
procedures require a period of 5 to 12 working days before a transfer can take 
place. 
LANDKREIS SCHWEINFURT 
 
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28 The questions to be referred to the CJEU are relevant to the decision. In the event 
that the level of material benefits granted in Article 1a(7) of the Law on benefits 
for asylum seekers does not meet the requirements of Article 17(2) and (5) of the 
Reception Conditions Directive, and the restriction cannot be justified on the basis 
of Article 20 of the Reception Conditions Directive, its application is 
prohibited(see only CJEU of 21.11.2018 – C-713/17 – paragraph 40; CJEU of 
17.4.2018 – C-414/16 – paragraph 82). For the present legal dispute, this would 
mean that the district’s decision was unlawful and that its appeal could therefore 
not be successful. Under the Law on benefits for asylum seekers, cash benefits 
would also have to be paid to FB for the period that had already expired. 
[…]