The request for a preliminary ruling was lodged before the CJEU by the Administrative Court in Austria, in the context of a dispute between XY and the Federal Office for Immigration and Asylum (BFA) concerning the rejection of the application for international protection lodged by XY, an Iraqi national of Shia Muslim faith. The applicant argued that he feared persecution as he refused to fight for Shiite militias and that his country was still at war. His request was rejected by decision of 29 January 2018 and he subsequently lodged another application in which he argued that he in fact feared persecution due to his homosexuality. Hi subsequent application was rejected as inadmissible. On appeal, the Federal Administrative Court held that XY failed to disclose his homosexuality during the investigation of the first application for international protection and that the res judicata principle prohibits the authorities to take into account the factual element. Upon revision, the Administrative Court requested the CJEU to determine whether the concept of new elements or facts which have arisen or have been presented by the applicant, under the recast Asylum Procedures Directive, Article 40 (2) and (3), must be understood as meaning that it relates only to elements or facts which have recently arisen or that it also includes the allegation by an applicant of elements or facts which already existed before the final closure of an earlier proceeding.

The CJEU held that new elements or facts arisen or have been submitted includes new elements or facts which already existed before the closure of the earlier procedure that were not relied on by the applicant. The court also noted that the national provision which transposed Article 40 of the recast Asylum Procedures Directive included an additional criterion which was not provided in the directive and that is a time limit of two weeks for submission of the subsequent application, calculated from the moment that the person becomes aware of the new fact for reopening the case. The court held that Article 40 does not authorize the Member States to fix time limits for the lodging of a subsequent application, which implies that it prohibits the fixing of such deadlines. Finally, the court also interpreted the recast Asylum Procedures Directive, Article 40 (4) as meaning that it does not allow a Member State, which did not transpose this provision, to refuse to examine the substance of a subsequent request, when the new elements or facts relied on existed at the time of the previous proceedings and were not presented within the framework of this procedure due to a fault attributable to the applicant.

See also the CJEU's press release here.