The applicants in the proceedings are three stateless Palestinians who resided in Syria, travelled to Bulgaria, and were granted subsidiary protection on 26 February and 7 May 2012. In November 2013, they travelled to Germany, where they lodged a new asylum application on 29 November 2013. The German Federal Office sent take-back requests to the Bulgarian refugee authority, which rejected them, stating that, since it had previously granted subsidiary protection to the applicants, the take-back rules of the Dublin III Regulation were inapplicable. On 19 March 2014, the German Federal Office refused to grant the applicants asylum without examining the substance of their applications, arguing that they came from a safe country, and it ordered their removal to Bulgaria. On 18 February 2016, the Higher Administrative Court, Rheinland-Pfalz, Germany, annulled the decisions ordering the removal to Bulgaria, ruling that they were unlawful as it had not been established that Bulgaria was willing to take back the applicants, but dismissed the remaining actions, upholding the refusal to grant asylum in Germany. The applicants appealed to the Federal Administrative Court, which held that the Federal Office could not refuse to examine the asylum application on the grounds that the applicants came from a safe country and that the key question remained whether the contested decisions could be considered rejection decisions based on the inadmissibility of the asylum applications. 

In this context, the Federal Administrative Court stayed the proceedings and referred the following questions to the Court of Justice of the European Union (CJEU):

1.  Does the transitional provision contained in the first paragraph of Article 52 of [the Procedures Directive] preclude the application of national legislation which, in transposition of the power conferred in Article 33(2)(a) of [the Procedures Directive], which is more extensive than that conferred in the directive that preceded it, provides that an application for international protection is inadmissible if the applicant has been granted subsidiary protection in another Member State, in so far as the national legislation, in the absence of any national transitional provisions, is also applicable even to applications lodged before 20 July 2015? In particular, does the transitional provision contained in the first paragraph of Article 52 of [the Procedures Directive] allow the Member States, in particular, to transpose the extended power conferred in Article 33(2)(a) of [the Procedures Directive] retroactively, with the result that even applications which were lodged before that extended power was transposed into national law but which were not yet the subject of a final decision at the time of transposition are inadmissible?
2. Does Article 33 of [the Procedures Directive] confer on the Member States a right to choose whether to reject an application for asylum as inadmissible either on the basis that responsibility lies with another Member State (the Dublin Regulation) or on the basis of Article 33(2)(a) of [the Procedures Directive]?
3. If the answer to Question 2 is in the affirmative, does EU law prevent a Member State from transposing the power conferred by Article 33(2)(a) of [the Procedures Directive] to reject an application for international protection as being inadmissible on the ground that subsidiary protection has been granted in another Member State, where:

a) the applicant seeks to have the subsidiary protection granted to him in another Member State enhanced (by recognition of refugee status) and the asylum procedure in the other Member State was (and continues to be) vitiated by systemic flaws, or

b)  the form which the international protection takes, that is to say the living conditions of those benefiting from subsidiary protection, in the other Member State which has already granted the applicant subsidiary protection,  is contrary to Article 4 of the [Charter] and to Article 3 of the ECHR, or does not satisfy the requirements of Article 20 et seq. of [the Qualification Directive] but does not in and of itself infringe Article 4 of the Charter or Article 3 of the ECHR?

4.  If Question 3(b) is to be answered in the affirmative, is this also the case where, although the persons qualifying for subsidiary protection do not receive any subsistence benefits or those which they do receive are markedly inferior to those available in other Member States, they are in that regard not treated any differently from nationals of that Member State?

The court also submitted a fifth question, in case the second question was answered in the negative, but the CJEU concluded that based on the answers given, it was not necessary to answer it.

By decision of the President of the Court Cases C‑297/17, C‑318/17 and C‑319/17 were joined since the questions referred were identical in the three cases. Furthermore, those cases and Case C‑438/17 were joined for the purposes of the oral procedure and of the judgment.

To the first question, the CJEU concluded that the first paragraph of Article 52 of the recast Asylum Procedures Directive (APD) must be interpreted to allow a Member State to immediately apply the provision of national law transposing Article 33(2)(a) of that directive to applications for asylum on which no final decision has yet been made, which were lodged before 20 July 2015 (entry into force of the recast APD) and before the entry into force of that national law. However, the first paragraph of Article 52 read with Article 33 of the recast APD precludes such an immediate application if both the asylum application and the take back request were lodged before the entry into force of the recast APD and, in accordance with Article 49 of the Dublin III Regulation, still fall fully within the scope of the Dublin II Regulation.

To the second question, the CJEU ruled that Article 33 of the recast APD must be interpreted that it is not a condition for Member States to be able to reject an application for asylum as being inadmissible under Article 33(2)(a) of the directive that they must first have resorted to the take charge or take back procedures provided for by the Dublin III Regulation.  

To answer the third and fourth questions, which the CJEU considered together, the court relied on the findings of Jawo, C‑163/17, delivered on the same day. The court held that Article 33(2)(a) of the recast APD does not preclude a Member State from rejecting an application for the granting of refugee status as being inadmissible on the ground that the applicant has been previously granted subsidiary protection by another Member State. The court nuanced that this discretion was conditional on the living conditions that applicants could be expected to encounter as beneficiaries of subsidiary protection in that other Member State, not exposing them to a substantial risk of suffering inhuman or degrading treatment, within the meaning of Article 4 of the EU Charter. In this respect, the court noted that, the fact that the beneficiaries of such subsidiary protection do not receive, in that Member State, any subsistence allowance, or that such allowance is markedly inferior to that in other Member States, but not different from that of nationals of that Member State, can lead to the finding that that applicant would be exposed in that Member State to such a risk only if the consequence is that that applicant would, because of his or her particular vulnerability, irrespective of his or her wishes and personal choices, be in a situation of extreme material poverty.

Besides, the CJEU ruled that Member States are not precluded to consider inadmissible an application as the applicant has been granted subsidiary protection in another Member State, where the asylum procedure in the other Member State that has granted such protection leads to a systematic refusal, without real examination, to grant refugee status to applicants for international protection who satisfy the conditions laid down in Chapters II and III of the recast Qualification Directive.