Opinion of the Advocate General — ECLI:EU:C:2024:563
Date: 2024-06-27
Language of the case: German
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-123/23 – 1 
Case C-123/23 
Request for a preliminary ruling 
Date lodged: 
1 March 2023 
Referring court: 
Verwaltungsgericht Minden (Germany) 
Date of the decision to refer: 
28 October 2022 
Applicants: 
N. A. K. 
E. A. K. 
Y. A. K. 
Defendant: 
Bundesrepublik Deutschland 
  
[…] 
VERWALTUNGSGERICHT MINDEN 
(ADMINISTRATIVE COURT, MINDEN, GERMANY) 
Order 
[…] 
In the administrative proceedings of 
1. Ms N. A. K., 
2. E. A. K., a minor, 
3. Y. A. K., a minor, 
the second and third applicants represented by the mother, the first applicant, 
EN 
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Applicants, 
[…] 
v 
Bundesrepublik Deutschland (Federal Republic of Germany), represented by 
Bundesministerium des Innern (Federal Ministry of the Interior), which is 
represented by Bundesamt für Migration und Flüchtlinge (Federal Office for 
Migration and Refugees), […] 
Defendant, 
concerning the right to asylum (Gaza Strip) 
here: Reference to the Court of Justice of the European Union 
  
the 1st Chamber of the Verwaltungsgericht Minden (Administrative Court, 
Minden) 
ordered on 28 October 2022, without a hearing, 
[…] 
[…] [formation of the court]: 
[…] [procedural issues] 
The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling: 
Must Article 33(2)(d) of Directive 2013/32/EU, read in conjunction with 
Article 2(q) of that directive, be interpreted as precluding legislation of a 
Member State under which an application for international protection lodged 
in that Member State is to be rejected as inadmissible if an application for 
international protection previously lodged in another Member State has been 
finally rejected by that other Member State as unfounded? 
Grounds: 
1 A. The applicants are stateless Palestinians from the Gaza Strip. According to the 
birth certificates submitted by them, the first applicant was born on 28 January 
1985, the second applicant on 24 December 2012 and the third applicant on 
4 January 2015. According to their statements, the applicants entered the Federal 
Republic of Germany on 11 November 2019 and sought asylum on 15 November 
2019. Their formal asylum applications were registered by the Federal Office for 
Migration and Refugees (‘the Federal Office’) on 22 November 2019. 
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2 In her hearings, the first applicant stated that she had left the Gaza Strip with her 
children in 2018 and had travelled to Germany inter alia via Spain and Belgium. 
In the Gaza Strip, she and her children had been persecuted by Hamas because of 
her husband’s political activities. In addition, her parents had wanted to force her 
to hand over her children to her husband’s family and to return to her parents’ 
house alone. They had lived in Belgium for about a year and had filed applications 
for international protection there. Her husband had been living in the Federal 
Republic of Germany for some time. 
3 The husband of the first applicant and father of the second and third applicants 
entered the Federal Republic of Germany in 2014. His application for 
international protection was rejected with final effect by decision of 31 March 
2017 under threat of removal to the Gaza Strip. 
4 A Eurodac query by the Federal Office resulted in category 1 hits for the first 
applicant for Spain and Belgium. A take-back request by the Federal Office to the 
Spanish authorities was refused by letter dated 28 November 2019. No take-back 
request was made to the Belgian authorities. 
5 A request for information from the Federal Office to the Belgian authorities was 
answered by the latter in a letter dated 5 March 2021 to the effect that the first 
applicant’s application for international protection of 21 August 2018 had been 
rejected on 5 July 2019 after an examination of the grounds for asylum and that no 
appeal had been lodged against that decision. According to the documents sent to 
the Federal Office by the Belgian authorities, the rejection of the application was 
based, among other things, on the fact that it had not been credibly demonstrated 
that the first applicant was threatened with persecution or serious harm in her 
country of origin. Upon her return to the Gaza Strip, she could call upon the 
support of the United Nations Relief and Works Agency for Palestine Refugees in 
the Near East (‘UNRWA’). 
6 By decision of 25 May 2021, the Federal Office rejected the applicants’ asylum 
applications as inadmissible, determined that there were no removal bans pursuant 
to Paragraph 60(5) and the first sentence of Paragraph 60(7) of the 
Aufenthaltsgesetz (Law on residence; ‘the AufenthG’) and threatened the 
applicants with removal to the Gaza Strip. The principal arguments of the Federal 
Office were as follows: pursuant to Paragraph 71a(1) of the Asylgesetz (Law on 
asylum; ‘the AsylG’) no further asylum procedure was to be carried out. The 
asylum procedure pursued by the applicants in Belgium had been concluded 
unsuccessfully. There were no grounds for reopening the procedure pursuant to 
Paragraph 51(1) to (3) of the Verwaltungsverfahrensgesetz (Law on 
administrative procedure; ‘the VwVfG’). Neither the factual and legal 
circumstances had changed, nor had the applicants submitted new evidence. 
7 The applicants brought an action against that decision on 9 June 2021. The 
applicants’ principal arguments were as follows: as a single or divorced woman, 
the first applicant faced considerable discrimination in the Gaza Strip. In 
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particular, violence against women was socially legitimised and access to medical 
care and work was limited. Apart from that, the precarious conditions in the Gaza 
Strip would not allow them to meet their basic living expenses. A complicating 
factor was that there was no family support in the Gaza Strip. It was not expected 
that UNRWA would provide adequate support. The authorities in Belgium had 
failed to examine this thoroughly enough. Regardless of this, it was de facto 
impossible for them to return to the Gaza Strip and again place themselves under 
the protection of UNRWA. On that basis, they should be granted refugee status as 
stateless Palestinians in accordance with Paragraph 3(3) of the AsylG and 
Article 1(D) of the Convention relating to the Status of Refugees (Geneva 
Refugee Convention – GFC) (ipso facto protection). 
8 By order of 31 August 2021 […], the referring court ordered the suspensive effect 
of the action against the threat of removal contained in the contested decision, 
with the principal argument that, on the basis of the observations of the European 
Commission (‘the Commission’) on the concept of ‘subsequent application’ in 
Case C-8/20, which the Court of Justice of the European Union (‘the Court of 
Justice’) did not address in detail in those proceedings, there were serious doubts 
as to whether Paragraph 71a of the AsylG was compatible with EU law. 
9 B. The legal action must be stayed and referred to the Court of Justice under 
Article 267 of the TFEU for a ruling on the question concerning Article 33(2)(d) 
of Directive 2013/32/EU of the European Parliament and of the Council of 
26 June 2013 (OJ 2013 L 180, p. 60, Procedures Directive II, ‘Directive 
2013/32/EU’) read in conjunction with Article 2(q) of that directive. The question 
referred is relevant to the decision and requires clarification by the Court of 
Justice. 
10 I. The national legal position is as follows: 
11 1. If a foreign national files another asylum application following the unsuccessful 
conclusion of an asylum procedure in a safe third country (Paragraph 26a of the 
AsylG) in which European Community law on the responsibility for conducting 
asylum procedures applies, national law refers to this as a second application 
(Paragraph 71a(1) of the AsylG). The examination of the second application – just 
like the examination of a subsequent application (Paragraph 71(1) of the AsylG) – 
is carried out in two stages: The first stage concerns the question as to whether a 
further asylum procedure is to be conducted (Paragraph 71a(1) of the AsylG). The 
conditions under which a further asylum procedure is to be conducted follow – in 
so far as relevant to the present case – from Paragraph 51(1) and (2) of the 
VwVfG. If there are no grounds for conducting a further asylum procedure, the 
second application is to be rejected as inadmissible (point 5 of Paragraph 29(1) of 
the AsylG); in such a case, contrary to Paragraph 31(2) of the AsylG, the reasons 
put forward by the applicant as to why he or she fears persecution or serious harm 
in his or her country of origin need not be further examined, but the existence of 
removal bans under national law must be examined (Paragraph 31(3) of the 
AsylG). That concludes the second application procedure – subject to judicial 
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review proceedings. If, on the other hand, there are grounds for conducting a 
further asylum procedure, the second application is admissible and the competent 
authority must examine, in a second stage, whether the applicant is to be granted 
international protection. 
12 The difference between a subsequent application (Paragraph 71(1) of the AsylG) 
and a second application (Paragraph 71a(1) of the AsylG) is that the first asylum 
procedure will have been conducted in Germany in the case of a subsequent 
application and in a safe third country in the case of a second application. 
See Verwaltungsgericht (VG) Schleswig (Administrative Court, Schleswig, 
Germany), judgment of 16 August 2021 – 9 A 178/21 –, 
DE:VGSH:2021:0816.9A178.21.00, paragraph 20. 
13 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 decision under asylum law on an equal footing with a decision 
under asylum law made by the Federal Office. 
See Bundestag Publication 12/4450, p. 27; Bundesverwaltungsgericht 
(BVerwG) (Federal Administrative Court), judgment of 14 December 2016, 
1 C 4.16, DE:BVerwG:2016:141216U1C4.16.0, paragraph 30. 
14 On the basis of the previous case-law of the Court of Justice, it is clear that 
Paragraph 71a(1) of the AsylG does not apply if the third country is not a Member 
State of the European Union 
- see CJEU, judgment of 20 May 2021, C-8/20, EU:C:2021:404, 
paragraph 31 et seq. (Application for asylum rejected by Norway) - 
15 or if it is a Member State but not bound by Directive 2011/95/EU of the European 
Parliament and of the Council of 13 December 2011 (OJ 2011 L 337, p. 9, 
Qualification Directive, ‘Directive 2011/95/EU’). 
See CJEU, judgment of 22 September 2022, C-497/21, EU:C:2022:721, 
paragraph 36 et seq. (Application for asylum rejected by Denmark). 
16 On the other hand, the Court of Justice has so far expressly left open the question 
of whether the concept of ‘subsequent application’ in Article 2(q) and 
Article 33(2)(d) of Directive 2013/32/EU can be applied across Member States. 
See CJEU, judgments of 20 May 2021, C-8/20, EU:C:2021:404, 
paragraphs 30 and 40, and of 22 September 2022, C-497/21, 
EU:C:2022:721, paragraphs 36 and 46. 
17 That question arises in two different scenarios: In the first scenario, the competent 
authority of another Member State has examined the substance of the asylum 
application filed there and rejected it with final effect. That is the scenario in the 
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present case. In the second scenario, the competent authority of the other Member 
State has decided to discontinue the asylum procedure conducted there because 
the applicant has not pursued that procedure further. That scenario is the subject of 
further proceedings which the referring court has yet to refer to the Court of 
Justice for a preliminary ruling. 
18 2. The relevant national provisions read as follows: 
19 Paragraph 26a of the AsylG (Safe third countries) 
20 […] 
(2) In addition to the Member States of the European Union, safe third countries 
are those listed in Annex I. […]  
21 Paragraph 29 of the AsylG (Inadmissible applications) 
22 (1) An application for asylum shall be inadmissible if: 
23 […] 
24 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. 
25 […] 
26 Paragraph 31 of the AsylG (Decisions by the Federal Office on asylum 
applications) 
27 […] 
28 (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. […] 
29 (3) In cases pursuant to subparagraph 2 and in decisions on inadmissible asylum 
applications it shall be determined whether the conditions in Paragraph 60(5) or 
(7) of the Law on residence are met. […] 
30 Paragraph 71 of the AsylG (Subsequent application) 
31 (1) If, after 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. […] 
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32 Paragraph 71a of the AsylG (Second application) 
33 (1) If the foreign national makes an asylum application (second application) in the 
federal territory following the unsuccessful conclusion of an asylum procedure in 
a safe third country (Paragraph 26a) in which European Community law on the 
responsibility for conducting asylum procedures applies or which has concluded 
an international agreement 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. 
34 […] 
35 Paragraph 51 of the VwVfG (Reopening the procedure) 
36 (1) An administrative body shall consider an application from the individual 
concerned requesting that an administrative measure that is no longer open to 
challenge be annulled or amended if 
37 1. the factual or legal circumstances on which the administrative measure was 
based have subsequently changed in favour of the individual concerned; 
38 2. new evidence has come to light which would have led to a more favourable 
decision for the individual concerned; 
39 3. […] 
40 (2) The application is admissible only if the individual concerned was unable, 
through no serious fault, to assert the ground for reopening in the earlier 
procedure, in particular by lodging an appeal. 
41 II. The question set out in the operative part of the present order requires 
clarification and is relevant to the decision with regard to the first applicant. With 
regard to the second and third applicants, the Federal Office has not yet 
determined whether they also filed asylum applications in Belgium and whether 
these may also have been rejected. This will have to be clarified as part of the 
national proceedings. 
42 According to the facts of the case and matters at issue as they currently stand, the 
requirements of Paragraph 71a(1) of the AsylG for the rejection of the first 
applicant’s asylum application as inadmissible have been met (1.). Moreover, the 
question posed cannot be answered with reference to the acte clair doctrine (2.). 
Accordingly, on the basis of national law the action against point 1 of the 
contested decision would have to be dismissed with regard to the first applicant. 
On the other hand, the contested decision would have to be annulled with regard 
to the first applicant if Paragraph 71a(1) of the AsylG was incompatible with EU 
law and was consequently inapplicable. In that case, the Federal Office would 
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have to examine of its own motion whether the first applicant should be granted 
international protection. 
43 1. The requirements of the second alternative of point 5 of Paragraph 29(1) and 
Paragraph 71a(1) of the AsylG for the rejection of the first applicant’s asylum 
application as inadmissible have been met. An asylum procedure was concluded 
in another Member State and was unsuccessful in that the Belgian authorities 
rejected the first applicant’s asylum application by decision of 5 July 2019 and she 
did not appeal against this decision. By deciding to determine the applicants’ 
asylum application, the Federal Office exercised its right to assume responsibility 
(Article 17(1) of Regulation (EU) No 604/2013); by doing so, at the latest, the 
Defendant became responsible for conducting their asylum procedure. 
44 On the basis of the facts known at this stage of the proceedings, the prerequisites 
for conducting another asylum procedure are not met. In particular, the factual and 
legal situation has not changed significantly in favour of the first applicant. When 
interpreting point 1 of Paragraph 51(1) of the VwVfG in conformity with EU law, 
such a change is deemed to have occurred if new elements or findings have arisen 
or have been presented which significantly add to the likelihood that international 
protection is to be granted to the first applicant. 
See VG Minden (Administrative Court, Minden), judgment of 21 June 2022, 
1 K 2351/20.A, DE:VGMI:2022:0621.1K2351.20A.00, juris paragraphs 31 
and 32.; VG Köln (Administrative Court, Cologne, Germany), judgment of 
3 August 2022, 20 L 800/22.A, DE:VGK:2022:0803.20L800.22A.00, juris 
paragraph 18 et seq. 
45 ‘New’ within the meaning of Article 33(2)(d) of Directive 2013/32/EU includes 
not only those elements or findings which arose after the procedure relating to a 
previous application for international protection was definitively concluded, but 
also those elements or findings which already existed before that procedure was 
concluded, but which were not relied on at the time by the applicant. 
See CJEU, judgment of 9 September 2021, C-18/20, EU:C:2021:710, 
paragraph 44. 
46 However, new findings and elements must be taken into account only if an asylum 
applicant was unable, without being seriously at fault, to rely on these findings or 
elements in the initial proceedings or in subsequent judicial proceedings. This 
follows from the express reference in Paragraph 71(1) of the AsylG to 
Paragraph 51(2) of the VwVfG, by which the national legislature has made use of 
the regulatory discretion granted to it by Article 40(4) of Directive 2013/32/EU in 
a manner that complies with EU law. 
See VG Düsseldorf (Administrative Court, Düsseldorf, Germany), order of 
24 January 2022, 1 L 34/22.A, DE:VGD:2022:0124.1L34.22A.00, juris 
paragraphs 6 and 7.; VG Minden (Administrative Court, Minden), judgment 
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of 21 June 2022, 1 K 2351/20.A, DE:VGMI:2022:0621.1K2351.20A.00, 
juris paragraph 34 et seq. 
47 The first sentence of Paragraph 71(1) of the AsylG and Paragraph 51(2) of the 
VwVfG are also compatible with EU law in all other respects. This is not 
precluded by the fact that Paragraph 51(2) of the VwVfG (‘serious fault’) differs 
in wording from Article 40(4) of Directive 2013/32/EU (‘fault of his or her own’). 
The former provision works in favour of asylum seekers and therefore does not 
give rise to any objections under EU law (Article 5 of Directive 2013/32/EU). 
See VG Minden (Administrative Court, Minden), judgments of 10 February 
2022, 2 K 41/19.A, DE:VGMI:2022:0210.2K41.19A.00, juris paragraphs 45 
and 46, and of 21 June 2022, 1 K 2351/20.A, DE:VGMI:2022: 
0621.1K2351.20A.00, juris paragraph 34 et seq. 
48 On this basis, the first applicant has not submitted any new elements or findings 
that would lead to another asylum procedure. In so far as she refers to actual 
events prior to her departure from the Gaza Strip in order to substantiate her 
asylum application, it is not apparent for what reasons she was prevented, without 
being seriously at fault, from presenting those circumstances in the context of the 
asylum procedure conducted in Belgium or in any court proceedings following 
that procedure. In so far as the first applicant raises the issue of the status of 
women in the Gaza Strip, the living conditions there, UNRWA’s ability to support 
the population there and the option of returning to the Gaza Strip, it is not 
apparent that the situation has since changed. With regard to the alleged divorce of 
the first applicant from her husband (and father of the second and third 
applicants), it is not apparent at this stage of the proceedings to what extent this 
circumstance significantly adds to the likelihood of the first applicant being 
granted international protection. 
49 2. Following the Commission’s statements in Case C-8/20, the question raised 
cannot (or can no longer) be answered with reference to the acte clair doctrine. 
Correctly Oberverwaltungsgericht (OVG) Nordrhein-Westfalen (NRW) 
(Higher Administrative Court, North Rhine-Westphalia, Germany), 
decisions of 9 December 2021, 17 B 1728/21.A, 
DE:OVGNRW:2021:1209.17B1728.21A.00, juris paragraph 6, and of 
31 March 2022, 1 B 375/22.A, DE:OVGNRW:2022:0331.1B375.22A.00, 
juris paragraph 7 et seq.; Niedersächsisches OVG (Higher Administrative 
Court, Lower Saxony, Germany), decision of 22 June 2022, 8 MC 74/22, 
DE:OVGNI:2022:0622.8MC74.22.00, juris paragraph 9; different opinion 
OVG Bremen (Higher Administrative Court, Bremen, Germany), judgment 
of 3 November 2020, 1 LB 28/20, DE:OVGHB:2020:1103.1LB28.20.00, 
juris paragraph 45 et seq.; Niedersächsisches OVG (Higher Administrative 
Court, Lower Saxony), decision of 28 December 2022, 11 LA 280/21, 
DE:OVGNI:2022:1228.11LA280.21.00, juris paragraph 53. 
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50 In the aforementioned proceedings, the Commission took the view that EU law 
precluded the application of the concept of ‘subsequent application’ across 
Member States. In its reasoning, it essentially stated that the application of this 
concept across Member States implied a certain degree of mutual recognition of 
negative asylum decisions and that such recognition is not provided for in the 
EU’s current asylum law. There was much to be said for the assumption that such 
a step towards mutual recognition had to be decided by the EU legislature 
expressly and with sufficient clarity, especially since the consequences of 
classifying an application as a subsequent application were considerable for 
asylum applicants. 
See pleadings of 20 May 2020, paragraphs 34 and 35, retrieved from 
https://ec.europa.eu/dgs/legal_service/submissions/c2020-8-obs_de.pdf. 
51 An acte clair exists if the correct application of EU law is so obvious as to leave 
no scope for any reasonable doubt as to the manner in which the question raised is 
to be resolved. 
See CJEU, judgment of 6 October 1982, 283/81, EU:1982:335, 
paragraph 16, and of 6 October 2021, C-561/19, EU:C:2021:799, 
paragraphs 33 and 39 et seq. 
52 Those conditions are not met in this case. Commission opinions on the 
interpretation of EU law are of great significance due to its role as ‘guardian of the 
Treaties’, which is inter alia responsible for monitoring the Member States’ 
compliance with EU law (see, inter alia, Article 258 of the TFEU). Furthermore – 
irrespective of whether one agrees with the Commission on the merits – the 
Commission’s reasoning is not clearly unfounded. Finally, the Commission’s 
reasoning is not refuted by the Advocate General’s submissions. 
However, this is how the Niedersächsisches OVG (Higher Administrative 
Court, Lower Saxony) ruled, decision of 28 December 2022, 11 LA 280/21, 
DE:OVGNI:2022:1228.11 LA 280.21.00, juris paragraph 54. 
53 This line of argument fails to recognise the position of the Advocate General. In 
his or her role as a ‘thought leader’ for the Court of Justice, the Advocate General 
is responsible for presenting reasoned submissions (second paragraph of 
Article 252 of the TFEU); the final decision on the interpretation of EU law is the 
sole responsibility of the Court of Justice (Article 267 of the TFEU). 
54 III. The referring court takes the following position on the question raised: 
55 The referring court, in accordance with the Opinion of Advocate General 
Saugmandsgaard Øe of 18 March 2021 in Case C-8/20 (ECLI:EU:C:2021:221), 
argues that the question should be answered to the effect that Article 33(2)(d) of 
Directive 2013/32/EU, read in conjunction with Article 2(q) of that directive, must 
be interpreted as not precluding legislation of a Member State under which an 
application for international protection lodged in that Member State is to be 
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rejected as inadmissible if an application for international protection previously 
lodged in another Member State has been finally rejected as unfounded by that 
other Member State. That legal interpretation also corresponds to the largely 
unanimous national case-law before the European Commission’s position became 
known. 
See, for example, Sächsisches OVG (Higher Administrative Court, Saxony, 
Germany), decision of 27 July 2020, 5 A 638/19.A, 
DE:OVGSN:2020:0727.5A638.19.A.00, juris paragraph 12 et seq.; OVG 
Berlin-Brandenburg (Higher Administrative Court, Berlin-Brandenburg, 
Germany), decision of 22 October 2018, OVG 12 N 70.17, 
DE:OVGBEBB:2018:1022.0VG12N70.17.00, juris paragraph 7; VG 
Minden, judgment of 9 December 2019, 10 K 995/18.A, 
DE:VGMI:2019:1209.10K995.18A.00, juris paragraphs 34 and 35; VG 
Cottbus (Administrative Court, Cottbus, Germany), judgment of 14 May 
2020, 8 K 1895/18.A, DE:VGCOTTB:2020:0514.8K1895.18.A.00, juris 
paragraph 21; but see also BVerwG, judgment of 14 December 2016, 1 C 
4.16, BVerwGE 157, 18 paragraph 26 (left open). 
56 For further justification, reference is made in full to the submissions of Advocate 
General Saugmandsgaard Øe of 18 March 2021 in Case C-8/20 (points 49 to 86), 
in particular to the submissions on the wording of Article 2(q) of Directive 
2013/32/EU (point 75) as well as the submissions on the prevention of secondary 
movements (point 77 et seq.). In addition, the referring court points out that 
Article 40(1) of Directive 2013/32/EU does not lead to a different result. The 
concept of ‘subsequent application’ used therein, which presupposes that further 
representations or a subsequent application are made ‘in the same Member State’, 
contains, on the basis of the definition of ‘subsequent application’ in Article 2(q) 
of Directive 2013/32/EU, along with Article 41(1)(b) of Directive 2013/32/EU, a 
special provision for a subgroup of subsequent applications, namely those filed in 
the same Member State. 
See Sächsisches OVG (Higher Administrative Court, Saxony), decision of 
27 July 2020, 5 A 638/19.A, DE:OVGSN:2020:0727.5A638.19.A.00, juris 
paragraph 18 et seq.; VG Minden (Administrative Court, Minden), decision 
of 31 July 2017, 10 L 109/17.A, DE:VGMI:2017:0731.10L109.17A.00, juris 
paragraphs 22 and 23 
57 Furthermore, it should be noted that the Court of Justice has already assumed that 
the concept of ‘subsequent application’ is to be applied across the Member States 
with regard to Article 25 of Council Directive 2005/85/EU of 1 December 2005 
(OJ 2005 L 326, p. 13, Procedures Directive I, ‘Directive 2005/85/EU’). 
See CJEU, judgment of 6 June 2013, C-648/11, EU:C:2013:367, 
paragraphs 63 and 64 
58 It reads (emphasis added by the referring court): 
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‘63 Furthermore, such an interpretation … does not … mean that an 
unaccompanied minor whose application for asylum is substantively 
rejected in one Member State can subsequently compel another Member 
State to examine an application for asylum. 
64 It is clear from Article 25 of Directive 2005/85 that, in addition to cases 
in which an application is not examined in accordance with Regulation (EU) 
No 343/2003, Member States are not required to examine whether the 
applicant is a refugee where an application is considered inadmissible 
because, inter alia, the asylum applicant has lodged an identical application 
after a final decision has been taken against him.’ 
59 These comments refer to Article 25(2)(f) of Directive 2005/85/EU, the 
predecessor of Article 33(2)(d) of Directive 2013/32/EU. 
60 Finally, reference is made to Advocate General Bot’s assessment that ‘Member 
States … agree to recognise asylum decisions issued by other Member States 
where they are negative.’ 
See Opinion of 13 June 2018 in Case C-213/17, EU:C:2018:434, 
paragraph 107. 
61 It follows from the above that the amendment of the secondary legislation on 
asylum pursued by the Commission 
- see Article 42(1) of the proposal for a regulation establishing a common 
procedure for international protection in the Union and repealing Directive 
2013/32/EU (COM(2016) 467 final) of 13 July 2016 - 
62 merely serves the purpose of clarification. The concept of ‘subsequent 
application’ may already be applied across Member States under the currently 
applicable EU law. 
63 IV. Given that neither the requirements of Article 99 of the Rules of Procedure of 
the Court of Justice for a decision by order nor the requirements of Article 105 of 
the Rules of Procedure for the conduct of an expedited procedure are met in the 
present proceedings, the referring court suggests that the President of the Court 
order that the present proceedings be given priority pursuant to Article 53(3) of 
the Rules of Procedure. In addition, the Court of Justice is asked to examine 
whether individual procedural steps, in particular a hearing (Article 76(2) of the 
Rules of Procedure) and a submission from the Advocate General (fifth paragraph 
of Article 20 of the Statute of the Court of Justice) may be dispensed with. 
64 In the view of the referring court, there are special circumstances which justify a 
priority decision: The question referred for a preliminary ruling concerns a 
fundamental issue of the Common European Asylum System, namely the 
application of the concept of ‘subsequent application’ across Member States and 
thus indirectly the mutual recognition of (negative) decisions of other Member 
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States on asylum applications. The question raised concerns a considerable 
number of asylum applications, at least in Germany. In Germany, 4 110 second 
applications were rejected as inadmissible in 2020, and 3 166 such applications in 
2021. 
65 In addition, it must be taken into account that after the Commission’s position 
became known in the second half of 2020, in proceedings in which the Federal 
Office had rejected an asylum application as inadmissible on the basis of the 
second alternative of point 5 of Paragraph 29(1) of the AsylG and 
Paragraph 71a(1) of the AsylG, many German courts have ordered the suspensory 
effect of legal actions and suspended proceedings pending a decision by the Court 
of Justice. 
See, for example, OVG NRW (Higher Administrative Court, North Rhine-
Westphalia), decisions of 9 December 2021, 17 B 1728/21.A, 
DE:OVGNRW:2021:1209.17B1728.21A.00, and of 31 March 2022, 1 B 
375/22.A, DE:OVGNRW:2022:0331.1B375.22A.00, and of 10 January 
2023, 19 B 1030/ 22.A, DE:OVGNRW:2023:0110.19B1030.22A.00; 
Niedersächsisches OVG (Higher Administrative Court, Lower Saxony), 
decision of 22 June 2022, 8 MC 74/22, 
DE:OVGNI:2022:0622.8MC74.22.00; VG Minden (Administrative Court, 
Minden), decision of 31 August 2021, 1 L 547/21.A, 
DE:VGMI:2021:0831.1L547.21A.00; VG Wiesbaden (Administrative 
Court, Wiesbaden), decision of 16 March 2022, 1L 226/22.WI.A, 
DE:VGWIESB:2022:0316.1L226.22.WI.A.00. 
66 Since the Court of Justice – as has already been shown – left the question open 
both in Case C-8/20 and in Case C-497/21, clarification of this question, which is 
important for national asylum practice, has now been pending for more than two 
years. That further delays a final decision on a large number of asylum 
applications. This can hardly be considered compatible with the basic objective of 
Directive 2013/32/EU to decide on asylum applications as soon as possible (see 
Article 31 of Directive 2013/32/EU as well as Recital 18 to that directive). 
67 The suggestion to consider waiving individual procedural steps is justified as 
follows: The question referred for a preliminary ruling was – as has already been 
shown – already the subject of Cases C-8/20 and C-497/21. In Case C-8/20, the 
Commission had raised this question in its written statement of 20 May 2020 
(paragraph 23 et seq.), and in Case C-497/21, the referring court. 
See VG Schleswig (Administrative Court, Schleswig), order for reference of 
16 August 2021 – 9 A 178/21 –, ECLI:DE:VGSH:2021:0816.9A178.21.00, 
question 1. 
68 As has already been set out, the Advocate General has already commented on the 
question raised in detail in his Opinion in Case C-8/20 (points 49 to 86). The 
referring court is not aware of any new, previously unconsidered aspects regarding 
REQUEST FOR A PRELIMINARY RULING OF 28. 10. 2022 – CASE C-123/23 
 
14  
this question. It is presumably not least for this reason that, in Case C-497/21 and 
in Case C-364/22, which also refers to the Advocate General’s Opinion in Case 
C-8/20, a hearing and the (renewed) submission of the Advocate General’s 
Opinion were dispensed with. 
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