Case registered before the CJEU under C-216/22

The Regional Administrative Court of Sigmaringen referred questions to the CJEU for a preliminary ruling:

1. a.    Is a national provision which considers a subsequent application admissible only if the factual or legal position on which the original rejection decision was based has subsequently changed in favour of the applicant compatible with Article 33(2)(d) and Article 40(2) of the recast APD? 

b.    Do Article 33(2)(d) and Article 40(2) of the recast APD preclude a national provision that does not treat a decision of the CJEU  (here: in preliminary ruling proceedings under Article 267 TFEU) as a ‘new element’ or ‘new circumstance’ or ‘new finding’ if the decision does not establish the incompatibility of a national provision with EU law but is limited to the interpretation of EU law? What conditions, if any, apply in order for a judgment of the CJEU which merely interprets EU law to be taken into account as a ‘new element’ or ‘new circumstance’ or ‘new finding’?

If Questions 1a and 1b are answered in the affirmative: must Article 33(2)(d) and Article 40(2) of the recast APD be interpreted as meaning that a judgment of the CJEU which has ruled that there is a strong presumption that a refusal to do military service under the conditions set out in Article 9(2)(e) of the recast APD is linked to one of the five grounds listed in Article 10 of that directive must be taken into account as a ‘new element’ or ‘new circumstance’ or ‘new finding’?

3. a.    Must Article 46(1)(a)(ii) of Directive 2013/32/EU be interpreted as meaning that the judicial remedy against an inadmissibility decision taken by the determining authority within the meaning of Article 33(2)(d) and Article 40(5) of Directive 2013/32/EU is limited to examining whether the determining authority has correctly concluded that the conditions for the subsequent application for asylum to be considered inadmissible under Article 33(2)(d) and Article 40(2) and (5) of Directive 2013/32/EU have been met?

b.    If Question 3a is answered in the negative: must Article 46(1)(a)(ii) of Directive 2013/32/EU be interpreted as meaning that the judicial remedy against an inadmissibility decision also covers the examination of whether the conditions for the grant of international protection within the meaning of Article 2(b) of Directive 2011/95/EU have been met if the court finds, after conducting its own examination, that the conditions for the rejection of the subsequent application for asylum as inadmissible are not met?

c.    If Question 3b is answered in the affirmative: does such a decision by the court require that the applicant has first been granted the special procedural guarantees under the third sentence of Article 40(3) in conjunction with the rules in Chapter II of Directive 2013/32/EU? May the court conduct that procedure itself or must it delegate it to the determining authority, where necessary after suspending the court proceedings? Can the applicant waive compliance with those procedural guarantees?