According to the abstract provided by the CJEU:

"Ruling on a request for a preliminary ruling from the Verwaltungsgericht Minden (Administrative Court, Minden, Germany), the Court of Justice specifies the conditions under which an application for international protection, within the meaning of Article 2(b) of Directive 2013/32, made to a Member State by a third-country national or by a stateless person who has already made an application for international protection to another Member State, can be rejected as inadmissible.

N.A.K. and her minor children, E.A.K. and Y.A.K, who are stateless Palestinians (C‑123/23), and M.E.O., a Lebanese national (C‑202/23), entered Germany in November 2019 and March 2020 respectively, whereupon they made asylum applications.

N.A.K. had previously lodged applications for asylum with the competent authorities of the Kingdom of Spain and the Kingdom of Belgium. A take-back request by the Bundesamt für Migration und Flüchtlinge (Federal Office for Migration and Refugees, Germany; ‘the Federal Office’) to the competent Spanish authority was refused by the latter. The application for international protection lodged by N.A.K. with the Belgian authorities had been rejected in July 2019. By decision of 25 May 2021, the Federal Office rejected the applications for asylum by N.A.K., E.A.K. and Y.A.K. on the ground, in essence, that the conditions laid down by the German legislation capable of justifying the opening of a new asylum procedure had not been met. N.A.K., E.A.K. and Y.A.K brought an action challenging that decision before the referring court.

Prior to his entry into Germany, M.E.O. had made an application for international protection in Poland. Since the Polish authorities agreed to take back M.E.O., by decision of 25 June 2020, the Federal Office rejected his asylum application as inadmissible and ordered his removal to Poland. However, the removal decision could not be enforced without a finding that M.E.O. had absconded, and the time limit for his transfer to Poland had expired. On 2 February 2021, the Federal Office then annulled its decision rejecting M.E.O.’s asylum application as inadmissible.

Furthermore, the procedure initiated by M.E.O.’s application for international protection in Poland had been discontinued on 20 April 2020 on the ground that he was residing in Germany, and could have been resumed, at his request, by 20 January 2021 at the latest. By decision of 14 July 2021, the Federal Office then rejected M.E.O.’s asylum application as inadmissible and threatened him with removal to Lebanon. On 27 July 2021, M.E.O. brought an action challenging that decision before the referring court.

Since the referring court had doubts as to whether the applications for international protection in the present case could be dismissed as inadmissible, it decided to refer the matter to the Court of Justice for a preliminary ruling.

Findings of the Court

The Court recalls, first of all, that, in interpreting a provision of EU law, account must be taken not only of its wording but also of its context and of the objectives pursued by the rules of which it forms part.

In that regard, it emphasises, in the first place, that the wording of Article 33(2) of Directive 2013/32, which sets out an exhaustive list of situations in which the Member States may consider an application for international protection to be inadmissible, does not require that, in order to be classified as a ‘subsequent application’ and rejected as inadmissible in the absence of new elements or findings, a further application for international protection must have been made to the authorities of the same Member State which took the final decision on a previous application by the same applicant.

As regards, in the second place, the context of the legislation, it is apparent from Article 40(7) of Directive 2013/32, read in conjunction with Article 17(1) of the Dublin III Regulation, that a ‘subsequent application’ is a further application made in the Member State that requested the transfer after a decision has been taken by the Member State to which the person concerned is to be transferred on a previous application by the same applicant.

Furthermore, if, in order to be classified as a ‘subsequent application’ within the meaning of Article 2(q) of that directive, an application for international protection must have been made to the competent authorities of the same Member State which had taken a decision on a previous application made by the same applicant, the reference, in Article 40(1) of that directive, to a subsequent application made ‘in the same Member State’ would have been superfluous.

In the third place, it is also consistent with the objective of limiting the secondary movements of applicants for international protection between Member States, pursued by that directive, as is apparent from recital 13 thereof, for Article 33(2)(d) of Directive 2013/32 to be interpreted as meaning that a Member State may classify a further application for international protection made by an applicant whose previous application has been rejected by a final decision taken by another Member State as a ‘subsequent application’ and reject it as inadmissible if it is not supported by new elements or findings.

In that regard, it should be noted that an interpretation by which the application is rejected, by a final decision of the same Member State, might prompt applicants whose applications for international protection have been definitively rejected by the competent authorities of a Member State to move to a second or even third Member State in order to make a new application of a similar nature.

Moreover, the possibility of rejecting as inadmissible a further application for international protection which is not based on new elements or findings, where a previous application by the same applicant has been rejected by a decision taken by another Member State, is consistent with the principle of mutual trust between the Member States, on which the Common European Asylum System is based.

Therefore, Article 33(2)(d) of Directive 2013/32, read in conjunction with Article 2(q) of that directive, must be interpreted as not precluding legislation which provides for the possibility of rejecting as inadmissible an application for international protection made by a third-country national or a stateless person whose previous application for international protection, made to another Member State to which Directive 2011/95 applies, has been rejected by a final decision taken in that latter Member State.

Next, the Court states that although Article 2(q) of Directive 2013/32 does not expressly refer to the situation where the Member State to which the applicant had made his or her application for international protection has taken the decision to discontinue the examination of that application following its implicit withdrawal, a further application made after the adoption of such a decision may also be classified as a ‘subsequent application’. However, the classification of a further application by the same applicant as a ‘subsequent application’ is excluded where that further application was made before the adoption of a final decision on that applicant’s previous application.

Moreover, for the purposes of classifying an application for international protection as a ‘subsequent application’, it is only the date on which it is made, which is not subject to any administrative formalities, that is of relevance, and not the date it is lodged. Furthermore, the decision taken by the determining authority to discontinue the examination of an application for international protection on the ground that the applicant has implicitly withdrawn his or her application cannot be regarded as a final decision as long as the applicant has the possibility to request that his or her case be reopened or to make a new application which is not to be subject to the procedure referred to in Articles 40 and 41 of Directive 2013/32.

Consequently, Article 33(2)(d) of Directive 2013/32, read in conjunction with Article 2(q) of that directive, must be interpreted as precluding national legislation which provides for the possibility of rejecting as inadmissible an application for international protection made by a third-country national or by a stateless person who has already made an application for international protection with another Member State, where the further application was made before the competent authority of the second Member State had taken the decision to discontinue the examination of the previous application on account of its implicit withdrawal."