Case C‑216/22
A. A.
v
Bundesrepublik Deutschland
(Request for a preliminary ruling from the Verwaltungsgericht Sigmaringen)
Judgment of the Court (Grand Chamber) of 8 February 2024
(Reference for a preliminary ruling – Common procedures for granting and withdrawing international protection – Directive 2013/32/EU – Article 33(2)(d) and Article 40(2) and (3) – Subsequent application – Conditions for rejecting such an application as inadmissible – Concept of ‘new elements or findings’ – Judgment of the Court on a question of interpretation of EU law – Article 46 – Right to an effective remedy – Jurisdiction of the national court or tribunal to rule on such an application on the merits in the event of illegality of the decision rejecting an application as inadmissible – Procedural safeguards – Article 14(2))
1. Border controls, asylum and immigration – Asylum policy – Procedures for granting and withdrawing international protection – Directive 2013/32 – Procedure for examining an application for international protection – Application capable of being considered as inadmissible by the Member States – Ground – Subsequent application which does not refer to any new elements or findings – Concept of new element – Judgment of the Court relevant to the assessment of the conditions required to claim the status of beneficiary of international protection – Judgment concerned relating to the interpretation of a provision already in force at the time that a decision on a previous application was adopted – Included – Date of the judgment – Irrelevant
(European Parliament and Council Directive 2013/32, Arts 2(f), 33(2)(d) and 40(2) and (3))
(see paragraphs 38, 40, 44, 49, 54, operative part 1)
2. Border controls, asylum and immigration – Asylum policy – Procedures for granting and withdrawing international protection – Directive 2013/32 – Appeal against a decision on an application for international protection – Right to an effective remedy – Annulment of the decision rejecting a subsequent application as inadmissible – Obligation to refer the examination of the application for international protection back to the determining authority – No such obligation – Possibility for Member States to authorise their courts or tribunals to rule themselves on that application – Condition – Compliance with the safeguards provided for by the provisions of Chapter II of Directive 2013/32
(Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Directive 2013/32, Arts 40(3) and 46(1)(a)(ii) and (3))
(see paragraphs 58-65, 67, operative part 2)
Résumé
Ruling on a reference for a preliminary ruling from the Verwaltungsgericht Sigmaringen (Administrative Court, Sigmaringen, Germany), the Court of Justice, sitting as the Grand Chamber, rules, inter alia, on the question of whether a preliminary ruling of the Court constitutes a new element implying that a subsequent asylum application must be examined on the merits and not rejected as inadmissible.
On 26 July 2017, a Syrian national lodged an asylum application in Germany. During his interview before the competent German authority, he explained that he had performed his military service in Syria between 2003 and 2005 and that he had left that country for fear of being recalled to serve in the armed forces or of being arrested if he refused to fulfil his military obligations.
By decision of 16 August 2017, the competent German authority granted the applicant subsidiary protection, but refused to grant him refugee status. It found, inter alia, that it could not be assumed that, having left Syria before being called up to join the Syrian army, the applicant would be regarded in his country as a deserter or an opponent of the regime. Moreover, he had not established that conscription was the reason for his departure. He relied, in general terms, only on the dangerous situation due to the war in Syria.
The applicant did not lodge an appeal against that decision, which therefore became final. On 15 January 2021, however, he lodged a further asylum application (‘subsequent asylum application’) in which he relied on the judgment of the Court of 19 November 2020, Bundesamt für Migration und Flüchtlinge (Military service and asylum). (1) He argued that, in that judgment, the Court had indicated that, in certain circumstances, there is a ‘strong presumption’ that refusal to perform military service relates to one of the reasons for persecution listed in Article 10 of Directive 2011/95. (2)
By decision of 22 March 2021, the competent German authority rejected as inadmissible the applicant’s subsequent asylum application on the ground that the Court judgment relied on did not mean that it had to examine that application on the merits.
Ruling on an appeal brought by the applicant against that decision, the Administrative Court, Sigmaringen, which is the referring court, has doubts as to the question of whether a judgment of the Court, which is limited to interpreting a provision of EU law already in force at the time of the adoption of the decision on a previous application, is capable of constituting a ‘new element or finding’, which excludes the possibility of rejecting a subsequent asylum application as inadmissible.
Findings of the Court
The Court recalls, first of all, that it is apparent from the wording and purpose of Article 33(2) of Directive 2013/32 as well as from the scheme of that directive that the possibility of rejecting an application for international protection as inadmissible as referred to in that provision derogates from the obligation to examine the substance of such an application. The Court has thus already held that it follows both from the exhaustiveness of the list in the said provision and from the fact that the grounds of inadmissibility set out in that list are exemptions that those grounds must be interpreted strictly. (3) Accordingly, the situations in which Directive 2013/32 requires a subsequent application to be considered admissible must, conversely, be interpreted broadly.
Furthermore, it is apparent from the very wording of Article 33(2)(d) of Directive 2013/32 and, in particular, from the use of the expression ‘new elements or findings’ that that provision refers not only to a factual change in the personal circumstances of an applicant or in that of his or her country of origin, but also to new legal elements.
It follows, in particular, from the case-law that a subsequent application cannot be declared inadmissible, pursuant to Article 33(2)(d) of Directive 2013/32, (4) where the determining authority, within the meaning of that directive, (5) finds that the definitive rejection of the earlier application is contrary to EU law. Such a finding must necessarily be made by that determining authority when that incompatibility arises from a judgment of the Court or was established, as an ancillary finding, by a national court or tribunal. (6)
It follows that, in the specific context of Directive 2013/32, any judgment of the Court is liable to come within the concept of ‘new element’, within the meaning of Article 33(2)(d) and Article 40(2) and (3) of that directive. (7) That finding is irrespective of whether that judgment was delivered before or after the adoption of the decision on the previous application or whether it finds that a national provision on which that decision was based is incompatible with EU law or is limited to the interpretation of EU law, including that already in force at the time when the said decision was adopted.
However, in order for a subsequent application to be admissible, it is necessary, moreover, in accordance with Article 40(3) of Directive 2013/32, that the new elements or findings ‘significantly add to the likelihood of the applicant qualifying as a beneficiary of international protection by virtue of Directive [2011/95]’.
It follows that any judgment of the Court, including a judgment which is limited to interpreting a provision of EU law already in force at the time that a decision on a previous application was adopted, constitutes a new element, within the meaning of Article 33(2)(d) and Article 40(2) and (3) of Directive 2013/32, irrespective of the date on which it was delivered, if it significantly adds to the likelihood of the applicant qualifying as a beneficiary of international protection.