The Court of the Hague suspended the procedure and referred the case with questions to the CJEU on 16 December 2019. By judgement of 10 June 2021, the CJEU answered on questions related to national legislation and assessment of new elements in a subsequent application and the duty to cooperate with the applicant.

Following the CJEU judgement, the Court of the Hague invited the parties to submit reasoned opinions and closed the investigation on 28 June 2021.

On the CJEU judgement, the Court of the Hague noted that the determination of whether an element or finding is new involves a merely factual assessment, without questioning subjective reasons. The admissibility assessment has a low threshold, and it derives from the CJEU judgement that only when a subsequent application is submitted without new evidence or arguments, a substantive assessment of the elements invoked in a subsequent application is no longer necessary. In the view of the Court of the Hague, the CJEU made a clear distinction between the admissibility assessment and the merits assessment, substantively on the new elements and findings. It finds that when a Member States examines the elements and findings on the merits, the admissibility test was passed the application can no longer be rejected as inadmissible after evaluation of the new elements. However, the CJEU did not rule on how the documents, classified as new elements or/and findings, submitted shall be evaluated when assessing if international protection shall be granted.

Moreover, in order for a proper assessment of the documents submitted and to evaluate their probative value, an applicant shall further detail on the nature of the documents, on how he/she obtained them, the reasons why the documents are relevant and whether the documents are common in the country of origin despite not having reference material. The determining authority shall assess and ascertain such facts and circumstances through an interview and take the opportunity to question the later directly and actively before a careful examination and a thorough decision is taken. The duty to cooperate applies fully and the determining authority has to asses whether the applicant may be granted the benefit of doubt.

In order to properly assess the probative value of documents, the defendant will have to include in his assessment further facts and circumstances such as, for example, the nature of the documents, how the claimant arrived at the documents, why the plaintiff considers that these documents support his account and whether such documents are common in the country of origin despite the fact that the Documents Office does not have reference material and that no rulings can be made despite documentary research. far the authenticity of these documents. The defendant will therefore have to ascertain such facts and circumstances by actively questioning the plaintiff and thus by giving the plaintiff the opportunity to explain about them in an ear. The defendant cannot therefore, in principle, limit himself by only allowing the plaintiff to mention this information on the M35-O and to respond in an opinion, but will have to hear the plaintiff in person in order to arrive at a carefully prepared and properly reasoned decision.

When assessing subsequent applications, the cooperation obligation applies in full. This means that the defendant is also obliged to satisfy himself in the case of subsequent applications whether there is reason to have an FMO carried out on the basis of Article 18 of the Procedures Directive. In addition, the defendant will have to actively and sympathetically examine and make a known assessment of whether an applicant can be granted the benefit of the doubt.

In the case at stake, the Court of the Hague decided to annul the contested decision because the determining authority did not hear the applicant and because the determining authority did not sufficiently satisfy with its duty to cooperate, duty fully applicable in subsequent applications as in first application.