Opinion of the Advocate General — ECLI:EU:C:2021:117
Date: 2021-02-11
Language of the case: Dutch
Subject matter: Asylum policy;Area of freedom, security and justice;Border checks
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
16 December 2019 
Referring court: 
Rechtbank Den Haag, zittingsplaats’s-Hertogenbosch (Netherlands) 
Date of the decision to refer: 
16 December 2019 
Applicant: 
LH 
Defendant: 
Staatssecretaris van Justitie en Veiligheid 
  
Subject of the action in the main proceedings 
The action in the main proceedings concerns a ‘subsequent application’ for 
international protection within the meaning of Article 2(q) of Directive 2013/32 
(‘the Procedures Directive’). The question is whether, in such an application, the 
defendant may disregard documents the authenticity of which cannot be proved. 
Subject and legal basis of the request for a preliminary ruling 
By the present request under Article 267 TFEU, the referring court seeks to 
ascertain whether documents which have not been shown to be authentic can, for 
that reason alone, be deemed not to be covered by the term ‘new elements or 
findings’ referred to in Article 40 of the Procedures Directive.  
Questions referred 
I Is the determination by a determining authority of a Member State that 
original documents can never constitute new elements or findings if the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-921/19 
 
2  
authenticity of those documents cannot be established compatible with 
Article 40(2) of the Procedures Directive, 1 read in conjunction with Article 4(2) 
of the Qualification Directive 2 and Articles 47 and 52 of the Charter of 
Fundamental Rights of the European Union? If not, does it make any difference if, 
in a subsequent application, copies of documents or documents originating from a 
non-objectively verifiable source are submitted by the applicant?  
II Must Article 40 of the Procedures Directive, read in conjunction with 
Article 4(2) of the Qualification Directive, be interpreted as allowing the 
determining authority of a Member State, when assessing documents and 
assigning probative value to documents, to distinguish between documents 
submitted in an initial application and those submitted in a subsequent 
application? Is it permissible for a Member State, when submitting documents in a 
subsequent application, no longer to comply with the obligation to cooperate if the 
authenticity of those documents cannot be established?  
Provisions of EU law cited 
Charter of Fundamental Rights of the European Union, Articles 18, 19, 47, 52. 
Directive 2011/95/EU (Qualification Directive), Article 4. 
Directive 2013/32/EU (Procedures Directive), recitals 36 to 60 and Articles 33, 
34, 40, 42. 
Provisions of national law cited 
Vreemdelingenwet 2000 (Law on Foreign Nationals 2000), Article 30a. 
Vreemdelingenbesluit 2000 (Decree on Foreign Nationals 2000), Article 3.118b. 
Vreemdelingencirculaire 2000 (Circular on Foreign Nationals 2000), paragraph 
C1/2.9. 
Brief summary of the facts and the procedure in the main proceedings 
1 L.H. (‘the applicant’) is an Afghan national. On 8 December 2015, he lodged an 
asylum application in the Netherlands. During the asylum procedure he claimed 
 
1 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 (the Procedures 
Directive). 
2 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 (the Qualification Directive). 
LH 
 
3 
that, while working as a driver for a senior official, he was ambushed by the 
Taliban on a number of occasions and moreover was personally threatened. The 
Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and 
Security; ‘the defendant’) deemed his statements about the ambushes credible, but 
not those about the individual threats. His asylum application was therefore 
rejected. His appeal against that rejection was dismissed, as was the higher appeal.  
2 On 26 September 2018, the applicant lodged a ‘subsequent application’ for 
international protection within the meaning of Article 2(q) of the Procedures 
Directive. The original asylum application, with the same factual background, was 
considered again in this new procedure. The applicant again tried to substantiate 
the individual threats by the Taliban that he had put forward in the first procedure. 
He claimed to have come into possession of new documents, including originals 
the copies of which he had submitted in the previous procedure. These were 
primarily documents from the Afghan fire brigade and the ministry for which the 
applicant had worked.  
3 Under Article 40(2) of the Procedural Directive, a subsequent request is 
admissible only if there are new elements or findings to be considered. According 
to the defendant, that can be the case only if the newly submitted documents were 
demonstrated to be authentic. That is the reason why the defendant had the 
documents examined. The government service used for that purpose, however, did 
not have at its disposal reference material by which it could be determined 
whether the original documents had been drawn up by a competent authority. Nor 
was it possible to rule on their authenticity and substantive accuracy. The 
defendant accordingly declared the asylum application inadmissible. 
Main submissions of the parties to the main proceedings 
4 The parties are divided as to whether original documents the authenticity of which 
has not been established may be automatically disregarded or whether there 
should be an assessment of any probative value that may nevertheless be attached 
to the documents for the substantiation of an asylum claim in a subsequent 
procedure.  
5 According to the applicant, it is unreasonable to place the burden of proof 
regarding the authenticity of the original documents solely on him and to 
disregard those documents automatically if he does not succeed in doing so. The 
documents relate to the core of the reasons for making the asylum claim 
(‘asielrelaas’) and, in the initial procedure, crucial parts of it were deemed 
credible. Moreover, he has stated in writing how he obtained those documents and 
why he had initially been unable to access them. According to the applicant, it is 
contrary to European law, in particular, to the principle of effectiveness, to 
exclude certain categories of evidence in subsequent applications.  
6 In adopting the decision and in its statement of defence, the defendant relied 
exclusively on the position that there were no new elements or findings. In 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-921/19 
 
4  
accordance with national regulations and with its own policy, in force since 1 July 
2019, the applicant was not afforded the opportunity to present his views again in 
person. The defendant did not comment on the content and probative value of the 
documents, or on the fact that the applicant’s reasons for making the asylum claim 
were considered to be largely credible. Only at the hearing did the defendant, in 
response to the discussion on its position, take a substantive position in the 
alternative on the content and probative value of the documents. The question 
referred for a preliminary ruling concerns the primary position that there are new 
elements only if the documents are demonstrably authentic.  
Brief summary of the reasons for the referral 
7 The referring court states that, according to the settled case-law of inter alia 2015 
of the Afdeling bestuursrechtspraak (Chamber for Contentious Administrative 
Proceedings; ‘the Afdeling’) of the Raad van State (Council of State), the highest 
administrative court in immigration cases in the Netherlands, there are no new 
elements or findings if the documents submitted by a foreign national are not 
demonstrably authentic. The burden of proof rests on the foreign national. The 
defendant can be facilitate a foreign national by having the authenticity of the 
documents assessed, but that in no way affects the latter’s own responsibility. In 
2018, the Afdeling also ruled that the judgment of the European Court of Human 
Rights (‘the ECtHR’) of 19 January 2016, M.D. and M.A. v Belgium 
(CE:ECHR:2016:0119JUD005868912), does not alter that ruling.  
8 The referring court, on the contrary, is of the view that it follows from the 
judgment in M.D. and M.A. v Belgium that the defendant must carefully and 
thoroughly investigate a possible breach of Article 3 ECHR and that rejecting 
documents without assessing their authenticity, relevance and probative value is 
too formalistic an approach. Referring to the aforementioned case-law of the 
Afdeling, the defendant states that he did not in fact act contrary to Article 3 
ECHR since he had the authenticity of the documents investigated but, according 
to the referring court, that is not sufficient. In its opinion, it is also a formalistic 
approach not to take into account the content of documents merely because, 
following an investigation, it is not possible to rule on their authenticity.  
9 Even if the authenticity of the documents in question cannot be established, the 
defendant will have to take into account, on the basis of the M.D. and M.A. v 
Belgium judgment, the nature of those documents, the manner in which the 
applicant obtained them and their relevance to the asylum claim. By considering 
all those factors in combination with the uncertainty about their authenticity, it is 
possible to give a careful judgment about the probative value of the documents 
and thus to answer the question whether there are new facts and circumstances.  
10 According to the referring court, it is also apparent from other judgments of the 
ECtHR that, if a foreign national claims to fear a breach of Article 3 of the ECHR, 
LH 
 
5 
available documents must be used and their content taken into account.3 Those 
judgments stemmed from cases involving initial applications. It is not apparent 
from the wording of those judgments, however, that the grounds considered relate 
solely to the obligations of Member States during initial applications. On the 
contrary, the ECtHR appears to have formulated general principles for the 
assessment of documents submitted by applicants for international protection to 
substantiate their asylum claim. It can also be inferred from this that Member 
States must ensure that foreign nationals who must substantiate their fear of 
human rights violations do not have to satisfy excessively high requirements. 
Member States will have to take into account the position in which those foreign 
nationals find themselves.  
11 In those circumstances, the question arises as to how the term ‘new elements or 
findings’ in Article 40 of the Procedures Directive is to be interpreted. Several 
provisions of the Procedures Directive contain the term ‘element’ without defining 
it. Some provisions refer to the definition of the term ‘elements’ in Article 4 of the 
Qualification Directive, which states that this covers ‘all the documentation at the 
applicant’s disposal’. The referring court assumes that that definition is also 
relevant for the interpretation of the term ‘element’ in Article 40 of the Procedures 
Directive. Article 4 of the Qualification Directive makes no distinction between 
elements in initial and subsequent procedures. Nor is it stipulated that only 
demonstrably authentic documents can constitute an element.  
12 The referring court considers it relevant for this reference for a preliminary ruling 
that the Procedures Directive and the Qualification Directive must be interpreted 
in accordance with the Charter of Fundamental Rights of the European Union. If 
original documents toned not be substantively assessed solely because their 
authenticity cannot be established, that may be contrary to the right to asylum, the 
prohibition of refoulement and the right to an effective remedy as laid down in 
Articles 18, 19 and 47 of the Charter. When interpreting those provisions, 
Articles 3 and 13 ECHR must be taken into account, as is apparent from 
Article 52(3) of the Charter.  
13 If it is correct that, in the same manner as in that ECtHR case-law, it must be 
assessed whether there are new elements or findings within the meaning of 
Article 40(2) of the Procedures Directive, the referring court is of the view that it 
is contrary to EU law if original documents are set aside without regard to their 
nature, to the manner of their acquisition and to their relevance to the asylum 
claim.  
 
3 For example, ECtHR, 18 December 2012, F.N. v Sweden, 
CE:ECHR:2012:1218JUD002877409; ECtHR 18 November 2014, M.A. v Switzerland, 
CE:ECHR:2014:1118JUD005258913, and ECtHR, 2 October 2012, Singh v Belgium, 
CE:ECHR:2012:1002JUD003321011. 
 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-921/19 
 
6  
14 The referring court also wishes to ascertain whether, when assessing documents, it 
is justified to make a distinction between the submission of original documents in 
an initial application and in subsequent applications. Current Netherlands practice 
takes into account only documents whose authenticity is uncertain in the case of 
first applications. In the case of a subsequent asylum procedure, uncertainty about 
authenticity in itself constitutes a reason to conclude that there are no new 
elements or findings, which results in the application being inadmissible. In that 
case, the submission of a copy or a document whose origin cannot be checked 
automatically results in inadmissibility.  
15 The referring court doubts whether that practice complies with European law. 
Indeed, it is not ruled out that information the provenance of which cannot be 
checked or which is evidenced by a copy of the document can nevertheless be 
assessed and can be included as objective information in the assessment of the 
subsequent request. Moreover, the defendant’s policy of not taking into account, 
in such an application, original documents the authenticity of which has not been 
established, means that a decision can be taken without the asylum applicant being 
heard and without the defendant having to comment on the nature, relevance and 
method of acquiring the documents.  
16 The Afdeling has never given a clear ruling on whether it is contrary to European 
law to declare a subsequent application inadmissible simply because of the 
inability to establish the authenticity of original documents submitted. The issue 
of whether it is permitted for a foreign national not to be heard if those documents 
are disregarded has not been addressed, either. The Afdeling has always confined 
itself to the opinion that, with the earlier asylum procedure, it has already been 
established according to law that the asylum claim is not credible and that this is 
also taken into account by the defendant in the position taken on the original 
documents the authenticity of which has not been established. Nowhere has the 
Afdeling assessed whether the term ‘new elements or findings’ should be 
interpreted in such a restrictive way that such documents need never be included 
in that definition and may therefore be disregarded. According to the referring 
court, the Afdeling thus failed to provide adequate reasons for its finding that 
documents that are not demonstrably authentic can be excluded.  
17 Since the highest administrative court has not yet ruled on the term ‘new elements 
or findings’, the referring court wishes to ascertain from the Court of Justice of the 
EU (‘the Court of Justice’) whether that term must be interpreted in such a 
restrictive way that original documents the authenticity of which has not been 
established need not be included under that definition. Previous case-law of the 
Court of Justice as well as Article 40 of the Procedures Directive and Article 4 of 
the Qualification Directive do not provide a definitive answer.  
18 The referring court also notes that subsequent applications will be unlikely if the 
foreign national, based in the country where he is seeking protection, will still 
have to obtain authentic documents in order to substantiate his subsequent 
application. Nor is it to be expected that a foreign national will be able to 
LH 
 
7 
substantiate a subsequent application solely by means of his statements in such a 
way that he would still be eligible for protection. After all, a foreign national is 
deemed to make a complete statement in the initial procedure and also capable of 
doing so. The referring court emphasises in that regard that, in the Netherlands, a 
personal interview with the foreign national can now be dispensed with if a 
subsequent application is based only on documents the authenticity of which has 
not been established. The foreign national may therefore not even have the 
opportunity to substantiate his asylum claim by means of statements.  
19 In the light of the foregoing, the referring court proposes that the Court of Justice 
answer the questions referred for a preliminary ruling as follows: 
20 I ‘Member States are not permitted to provide that original documents can 
never constitute new elements or findings as referred to in Article 40(2) of the 
Procedures Directive solely because the authenticity of those documents has not 
been established. Member States are not permitted to provide that documents will 
never be assessed in terms of content solely because they are copies or because 
the document originates from a non-objectively verifiable source.’  
21 II ‘Member States are not permitted to differentiate between the assessment 
and evaluation of documents submitted in an initial application and documents 
submitted in a subsequent application. All documents submitted must, in principle, 
be involved in the assessment of whether an applicant for recognition as a 
beneficiary of international protection is eligible under Directive 2011/95/EU, 
even if documents are submitted in a subsequent application. In the case of a 
subsequent application, the Member State cannot stipulate that it remains the sole 
responsibility of the applicant to demonstrate the authenticity of original 
documents, but shall, under certain circumstances, also have to fulfil the duty of 
cooperation, taking into account the nature and content of the documents and 
statements on the manner in which they were obtained and thus assessing whether 
they should be regarded as prima facie evidence.’