1 The claimant, a stateless Palestinian from Syria, contests the decision by the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, hereinafter Federal Office) pursuant to which he is not entitled to asylum because he entered Germany from a safe third country.

2 He left Syria, together with his parents and siblings (the claimants in proceeding 1 C 18.16) in 2012 and entered Bulgaria, where the family was granted subsidiary protection in a decision of 26 February 2013. In November 2013, the claimant and his family entered the Federal Republic of Germany by way of Romania, Hungary and Austria, and lodged another application for asylum here on 29 November 2013.

3 On 22 January 2014, the Federal Office addressed a request to take back to the Bulgarian state refugee administration, which that authority refused in a letter dated 10 February 2014. Because subsidiary protection had already been granted to the claimant in Bulgaria, the provisions on taking back under the Dublin III Regulation did not apply in the present case. The competent Bulgarian authority was the Bulgarian border police.

4 By notice of 27 February 2014, the Federal Office found, without examining the substance of the asylum application, that the claimant was not entitled to asylum because he had entered from Bulgaria, a safe third country (no. 1), and ordered his deportation to Bulgaria (no. 2).

5 In response to the action filed against this notice, the Administrative Court (VG, Verwaltungsgericht) dismissed the action in its judgment of 20 May 2014. In its judgment of 18 February 2016, the Higher Administrative Court (OVG, Oberverwaltungsgericht) annulled the deportation order to Bulgaria, but with regard to all other aspects dismissed the appeal. It stated that the decision that the claimant is not entitled to asylum in the Federal Republic of Germany was lawful because the claimant entered Germany from a safe third country within the meaning of article 16a (2) first sentence of the Basic Law (GG, Grundgesetz) (sections 26a (1) first and second sentences, 31 (4) of the Asylum Act (AsylG, Asylgesetz)). The Court noted that, in any event, Austria was a safe third country. However, the order for deportation to Bulgaria was unlawful because it had not been established whether Bulgaria was still willing to take the claimant back.

6 The claimant's appeal on points of law contests this Among other aspects, he argues that the Dublin regime still applies even after subsidiary protection has been granted, because according to the transitional provision in article 49 (2) second sentence of the Dublin III Regulation, the present case must still be adjudicated on the basis of the Dublin II Regulation. Bulgaria's responsibility, which was originally established, had been transferred to Germany in the course of the proceedings, in accordance with the Dublin II Regulation.

7 The defendant claims that the asylum application was now at least inadmissible pursuant to section 29 (1) no. 2 AsylG.

8 The legal dispute is to be suspended. In accordance with article 276 of the Treaty on the Functioning of the European Union (TFEU), a preliminary ruling by the Court of Justice of the European Union (CJEU, hereinafter Court of Justice) is to be obtained on the questions raised in the operative part of the decision. These questions, which the Senate submitted to the Court of Justice by decisions of today's date in two other cases (1 C 18.16 and 1 C 20.16), concern the interpretation of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast version, OJ L 180 p. 60 - Directive 2013/32/EU), Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ L 180 p. 31 - Dublin III Regulation) and the Charter of Fundamental Rights of the European Union (CFR). As the interpretation of EU law is concerned, the Court of Justice has jurisdiction.

9 1. Under national law, the legal assessment of the action for annulment seeking a repeal of no. 1 of the notice of 27 February 2014 is founded on the Asylum Act in the version promulgated on 2 September 2008 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 1798), as last amended by the Fiftieth Act Amending the Criminal Code - Improvement of Protection of Sexual Self-Determination (StrÄndG 50, Fünfzigstes Gesetz zur Änderung des Strafgesetzbuches - Verbesserung des Schutzes der sexuellen Selbstbestimmung) of 4 November 2016, which entered into force on 10 November 2016 (BGBl. I p. 2460). According to the established jurisprudence of the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), changes in the law occurring after the appeal judgment must be taken into consideration if they had to be considered by the court of appeal - if it were to decide instead of the court deciding on appeals on points of law. Since this legal dispute concerns issues of asylum law where the court of appeal had to refer to the factual and legal situation at the time of the last oral hearing pursuant to section 77 (1) first sentence AsylG, it would have to consider the current legal situation if it were to decide on the matter now. That situation also includes the recast version of section 29 AsylG as created by the Integration Act of 31 July 2016 (BGBl. I p. 1939), as of 6 August 2016, if the application of that provision to the present dispute is not precluded by the transitional provision in article 52 (1) of Directive 2013/32/EU (see referred question 1.).

10 The following provisions of national law are hence the decisive legal framework for the legal dispute:
Article 16a GG
(1) Persons persecuted on political grounds shall be entitled to asylum.
(2) Subsection (1) may not be invoked by a person who enters the federal territory from a Member State of the European Communities or from another third state in which application of the Convention Relating to the Status of Refugees and of the Convention for the Protection of Human Rights and Fundamental Freedoms is assured. The states outside the European Communities to which the criteria of the first sentence apply shall be specified by a law requiring the consent of the Bundesrat. (...)
(...)
(5) Subsections (1) to (4) of this article shall not preclude the conclusion of international agreements of Member States of the European Communities with each other or with those third states which, with due regard for the obligations arising from the Convention Relating to the Status of Refugees and the Convention for the Protection of Human Rights and Fundamental Freedoms, whose enforcement must be assured in the contracting states, adopt rules conferring jurisdiction to decide on applications for asylum, including the reciprocal recognition of asylum decisions.
Section 1 AsylG
(1) This Act shall apply to foreign nationals applying for:
1. protection against political persecution under article 16a (1) of the Basic Law, or
2. international protection under Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ L 337 p. 9); international protection within the meaning of Directive 2011/95/EU comprises the protection against persecution under the Convention relating to the Status of Refugees of 28 July 1951 (BGBl. 1953 II p. 559, 560) and subsidiary protection within the meaning of the Directive; international protection granted under Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ L 304 p. 12) is equivalent to international protection as defined in Directive 2011/95/EU; (…).
Section 4 AsylG
A foreign national shall be eligible for subsidiary protection if he or she has shown substantial grounds for believing that he or she would face a real risk of suffering serious harm in his or her country of origin. Serious harm consists of:
1. death penalty or execution,
2. torture or inhuman or degrading treatment or punishment, or
3. serious and individual threat to a civilian's life or physical integrity by reason of indiscriminate violence in situations of international or internal armed conflict.
Section 13 AsylG
(1) (...)
(2) Every application for asylum shall constitute an application for recognition of entitlement to asylum and to international protection within the meaning of section 1 (1) no. 2. (...)
Section 26a AsylG
(1) Any foreign national who has entered the federal territory from a third country within the meaning of article 16a (2) first sentence of the Basic Law (safe third country) cannot invoke article 16a (1) of the Basic Law. He or she shall not be granted asylum. The first sentence shall not apply if
1. (...)
2. the Federal Republic of Germany is responsible for processing an asylum application based on European Community law or an international treaty with the safe third country, or if
3. (...)
(2) In addition to the Member States of the European Union, safe third countries are those listed in Annex I.
Section 29 AsylG
(1) An application for asylum shall be inadmissible if
1. another country
a) according to Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ L 180 of 29 June 2013, p. 31); or
b) based on other European Union law or another international treaty
is responsible for conducting the asylum procedure;
2. another Member State of the European Union has already granted the foreign national international protection within the meaning of section 1 (1) no. 2;
3. if a country that is willing to readmit the foreign national is regarded as a safe third country for that foreign national according to section 26a;
(...)
Section 34a AsylG
(1) If the foreign national is to be deported to a safe third country (section 26a) or to a country responsible for processing the asylum application (section 29 (1) no. 1), the Federal Office shall order his or her deportation to this country as soon as it has been ascertained that the deportation can be carried out. (...) No prior deportation warning or time limit shall be necessary. If it is not possible to order a foreign national's deportation in line with the first or second sentences, the Federal Office shall warn the foreign national that he or she will be deported to the country in question.
(2) (...)
Section 35 AsylG
In the cases under section 29 (1) no. 2 and 4, the Federal Office shall warn the foreign national that he or she will be deported to the country where he or she was safe from persecution.
Section 77 AsylG
(1) In disputes resulting from this Act, the court shall base its decision on the factual and legal situation at the time of the last oral hearing; if the decision is taken without oral hearing, it shall be based on the situation at the time the decision is taken. (...)
Section 25 of the Residence Act (AufenthG, Aufenthaltsgesetz)
(...)
(3) A foreign national should be granted a residence permit if a deportation ban applies pursuant to section 60 (5) or (7). (...)
(...)
Section 60 AufenthG
(1) In application of the Convention relating to the Status of Refugees of 28 July 1951 (BGBl. 1953 II p. 559), a foreign national may not be deported to a state in which his or her life or liberty is under threat on account of his or her race, religion, nationality, membership of a certain social group or political convictions. This shall also apply to persons who are entitled to asylum and to foreign nationals who have been incontestably granted refugee status or who enjoy the legal status of foreign refugees on other grounds in the federal territory or who have been granted foreign refugee status outside of the federal territory in accordance with the Convention relating to the Status of Refugees. Where the foreign national cites the ban on deportation pursuant to this subsection, the Federal Office for Migration and Refugees shall establish in an asylum procedure whether the conditions stated in the first sentence apply and the foreign national is to be granted refugee status, except in cases covered by the second sentence. The decision by the Federal Office shall only be contestable subject to the provisions of the Asylum Act.
(2) Foreign nationals may not be deported to a state where they face serious harm as referred to in section 4 (1) of the Asylum Act. Subsection 1 third and fourth sentences shall apply mutatis mutandis.
(...)
(5) A foreign national may not be deported if deportation is impermissible under the terms of the Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms (BGBl. 1952 II p. 685).

11 2. The questions referred are relevant for the decision and require clarification by the Court of Justice of the European Union.

12 a) The Federal Office was not empowered to refuse the examination of the asylum application on the grounds that the claimant entered from a safe third country. That decision, founded on section 26a AsylG, must be measured against the standard of section 29 (1) no. 3 AsylG, in the version of the Integration Act of 31 July 2016 (BGBl. I p. 1939), which entered into force during the appeal proceedings. According to that provision, an application for asylum is inadmissible if a country that is willing to readmit the foreign national is regarded to be a safe third country for that foreign national according to section 26a AsylG. The requirements of that provision are not met, because according to the required interpretation in conformity with EU law, only a country that is not a Member State of the European Union can be a safe third country in this sense. The Senate considers this to be an "acte clair".

13 It is true that the third-country provision under section 26a AsylG, linked to section 29 (1) no. 3 AsylG, is worded more broadly. Specifically, according to section 26a (2) AsylG, which corresponds to article 16a (2) GG, safe third countries are all Member States of the European Union as well as the countries listed in Annex I to the Asylum Act, which currently include only Norway and Switzerland. But this broad scope of the German third-country provision is not consistent with Directive 2013/32/EU. Because of the primacy of application of EU law, it must be restricted to mean that a referral to a safe third country is possible only with regard to the countries in Annex I, in any event in those instances where international protection fails. With reference to the Member States of the European Union, however, the concept of safe third countries as provided in national law cannot be used. This requirement of EU law proceeds from article 33 (2) of Directive 2013/32/EU, which exhaustively enumerates the reasons for which Member States may consider an application for international protection inadmissible. According to that provision, article 33 (2) (b) and (c) of Directive 2013/32/EU come under consideration as a basis in EU law for a national third-country provision. Those provisions refer to the concepts of the first country of asylum and the safe third country as defined in articles 35 and 38 of the Directive, but declare that these concepts apply only with reference to countries that are not Member States. The Senate may leave aside the question of whether the concept of a European safe third country under article 39 of the Directive likewise results in an authorisation to decide inadmissibility even though it is not mentioned in article 33 (2) of the Directive. For this concept as well is directed not to Member States of the European Union, but to European countries that are not members, or not members yet (...). Nor would any other conclusion result if the present case were still to be decided on the basis of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status. The applicability of the concepts of a safe third country and a first country of asylum provided there was likewise limited to countries that are not Member States (see article 25 (2) (b) and (c) of Directive 2005/85/EC).

14 Presumably the German legislature also assumed this limitation to third countries within the meaning of EU law when it adopted section 29 (1) no. 3 AsylG, even though it did not give expression to that assumption by amending section 26a (2) AsylG. It is evident from the legislative materials to section 29 (1) no. 3 AsylG that third countries within the meaning of section 29 (1) no. 3 AsylG refer only to those countries that are categorised as safe third countries by being listed in Annex I to the Asylum Act (see Federal Government's counter-statement to the Opinion of the Bundesrat, Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 18/8883 p. 7). This excludes the Member States of the European Union, because those states do not need to be listed.

15 b) The questions referred arise within the scope of the question to be examined by the Senate as to whether the third-country decision taken by the Federal Office can be re-interpreted as a different lawful decision. One option is the inadmissibility of the asylum application pursuant to section 29 (1) no. 2 AsylG. According to this provision, an application for asylum is inadmissible if another EU Member State has already granted the foreign national international protection within the meaning of section 1 (1) no. 2 AsylG. By this provision, inserted with effect as from 6 August 2016, the national legislature exercised the extended authorisation under article 33 (2) (a) of Directive 2013/32/EU. In that article of Directive 2013/32/EU, the EU legislature extended the possibility, formerly governed by article 25 (2) (a) of Directive 2005/85/EC, to reject an asylum application as inadmissible if another Member State has granted refugee status, in such a way that now the Member States may also reject an asylum application as inadmissible if subsidiary protection has been granted by another Member State.

16 aa) The ability to reject an asylum application because protection has been granted in another Member State was first implemented in German law, with regard to the "request for enhancement" concerned here (i.e., a subsequent application seeking the granting of refugee status, which has more favourable legal consequences, lodged by an applicant recognised as a person eligible for subsidiary protection in another Member State), by section 29 (1) no. 2 AsylG. The Senate does not concur with the opinion of some administrative courts that the provision of section 60 (2) second sentence AufenthG, newly inserted in the Residence Act by the Act on the Transposition of Directive 2011/95/EU of 28 August 2013 (BGBl. I p. 3474), which entered into force on 1 December 2013, already provided previously that such an request for enhancement is inadmissible (thus already decided by VG Minden, judgment of 10 May 2016 - 10 K 2248/14.A - (...) para. 198 et seqq.; dissenting opinion Mannheim Higher Administrative Court (Verwaltungsgerichtshof), judgment of 29 April 2015 - A 11 S 57/15 - (...) para. 53 et seqq.). It is true that with this provision, the legislature extended the inadmissibility of a new recognition procedure to include a granting of subsidiary protection under section 4 AsylG. This has the consequence that since that time, a request for subsidiary protection is also inadmissible if the foreign national has been granted the legal status of a refugee or a beneficiary of subsidiary protection in another Member State (see BVerwG, judgment of 17 June 2014 - 10 C 7.13 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 150, 29 para. 30; decision of 30 September 2015 - 1 B 51.15 - (...)). However, the "application mutatis mutandis" of section 60 (1) third sentence AufenthG, as required in section 60 (2) second sentence AufenthG, does not permit one to conclude with the requisite certainty that it is no longer admissible to seek the granting of refugee status after subsidiary protection has been granted in another Member State.

17 It is certainly true that the national third-country provision as contained in section 26a AsylG in conjunction with article 16a (2) GG, as was already the case before section 29 AsylG, new version, entered into force, does not contain a transposition of article 33 (2) (a) of Directive 2013/32/EU. An intent to transpose must be expressed with sufficient clarity in national law, especially because it is not mandatory for the Member States to exercise the authorisation to include the grounds of inadmissibility under article 33 (2) of Directive 2013/32/EU in their national law. That was not done here. No sufficiently clear decision of the legislature to transpose article 33 (2) (a) of the Directive can be seen in section 26a AsylG. The third-country provision dates from a time long before the Procedures Directives were issued. In its very wording, it is attributable to the material scope of article 33 (2) (c), and also, at the outermost limit, (b) of Directive 2013/32/EU. Nor is there any positive indication elsewhere that after the applicable Directive entered into force, the legislature also intended this provision to have the function of transposing article 25 (2) (a) of Directive 2005/85/EC and subsequently article 33 (2) (a) of Directive 2013/32/EU.

18 bb) The constituent elements of section 29 (1) no. 2 AsylG are satisfied. Bulgaria is a Member State of the EU. The Court of Appeal found that the claimant was granted subsidiary protection within the meaning of Directive 2011/95/EU and therefore international protection within the meaning of section 1 (1) no. 2 AsylG in Bulgaria.

19 cc) However, the referring Court seeks clarification as to whether the application of section 29 (1) no. 2 AsylG to the present case is compatible with EU law.

20 (1) There is first of all a need for the Court of Justice to clarify whether the aforementioned inadmissibility provision can already be applied ratione temporis to the asylum application lodged here in November 2013, if only for reasons of timing. National law (section 77 (1) AsylG) requires section 29 (1) no. 2 AsylG also to extend to applications lodged before the law entered into force, unless those applications were not yet the subject of a legally binding decision. The resulting "quasi retroactive effect" ("unechte Rückwirkung") is not contrary to national constitutional law in the specific case (as was already decided in substance by BVerwG, judgment of 17 June 2014 - 10 C 7.13 - BVerwGE 150, 29 para. 28 et seqq.). In the Senate's opinion, the trust of the persons concerned in the continuing applicability of the former legal situation weighs less heavily than the objective pursued with the new provision of preventing secondary movement after protection has already been granted in compliance with article 33 (2) (a) of Directive 2013/32/EU. This is at any event true in cases where the new Directive - as is the case here - was already in force when the applicant lodged his or her application for asylum in Germany. In this situation, he or she must at any event have allowed for the possibility that the new ground of inadmissibility would be transposed.

21 Without a transitional provision, article 33 (2) (a) of Directive 2013/32/EU or the national law transposing this provision would also have been applicable under EU law to pre-existing applications. According to the case-law of the Court of Justice, a Directive also applies immediately to the future effects of a situation which arose under the old rules (CJEU, judgment of 19 September 2013 - C-297/12 [ECLI:EU:C:2013:569], Filev et al. - para. 40), and therefore, here, to all applications that were not yet the subject of a legally binding decision.

22 However, in its article 52 (1), Directive 2013/32/EU contains a transitional provision whose interpretation is in need of clarification for the present case. It requires the Member States to apply the laws, regulations and administrative provisions referred to in article 51 (1) to applications for international protection lodged after 20 July 2015 or an earlier date (first sentence). Applications lodged before that date shall be governed by the laws, regulations and administrative provisions adopted pursuant to Directive 2005/85/EC. The application for international protection here was lodged before 20 July 2015 and also before the national-law transposition of the extended possibility of rejection under article 33 (2) (a) of Directive 2013/32/EU. In cases in which the person concerned is granted only subsidiary protection in another Member State, section 29 (1) no. 2 AufenthG does meet the requirements of article 33 (2) (a) of Directive 2013/32/EU, but not the requirements of article 25 (2) (a) of Directive 2005/85/EC; to that extent it is therefore incompatible with Directive 2005/85/EC.

23 Therefore, referred question 1 is intended to clarify how the aforementioned transitional provision of the Directive is to be interpreted with reference to such a case configuration. In a previous proceeding, the Senate held that article 52 (1) second sentence of Directive 2013/32/EU precludes the application of a national provision by which applications for refugee protection lodged before 20 July 2015 are inadmissible if the applicant has previously been granted subsidiary protection in another Member State (see BVerwG, decision of 23 October 2015 - 1 B 41.15 - (...) para. 11 et seq.). According to that interpretation, the provisions of national law adopted in transposition of Directive 2013/32/EU include applications lodged before 20 July 2015 only if those provisions are consistent with Directive 2005/85/EC. This interpretation was founded on the assumption that the opportunity opened up in article 52 (1) first sentence of Directive 2013/32/EU to apply the provisions of national law adopted in transposition of the new Directive even to applications lodged before that date ("or an earlier date") has meaning only insofar as more favourable provisions within the meaning of article 5 of Directive 2005/85/EC are concerned. By contrast, by the same interpretation, national provisions for transposing the new version of the Directive that deviate from the provisions of Directive 2005/85/EC to the applicant's detriment cannot extend to applications lodged before 20 July 2015, because of the provision in article 52 (1) second sentence of Directive 2013/32/EU. According to this understanding, the transitional provision protects the trust of those applicants who lodged their application before the transposition period, which expired on 20 July 2015 (see article 51 (1) of Directive 2013/32/EU), that they would be spared from legal detriment caused by the transposition of the new Directive.

24 This interpretation by the Senate of the transitional provision has on occasion encountered resistance in the jurisprudence of the German administrative courts (see VG Aachen, judgment of 9 December 2015 - 8 K 2119/14.A - (...) para. 70; VG Gelsenkirchen, judgment of 19 February 2016 - 2a K 2466/15.A - (...) para. 26 et seqq.; VG Minden, judgment of 10 May 2016 - 10 K 2248/14.A - (...) para. 214 et seqq., VG Darmstadt, judgment 6 March 2017 - 3 L 1068/17 DA.A - (...) para. 6). The deviating interpretation holds that the Member States were free to declare that legal provisions transposing the new Directive even extend to applications lodged before 20 July 2015. It holds that this followed from the addition "or an earlier date" in article 52 (1) first sentence of Directive 2013/32/EU. This position acknowledges that the second sentence of the provision prescribed that the law adopted in transposition of Directive 2005/85/EC applies to applications lodged before 20 July 2015 and therefore somehow contradicted the first sentence. But it holds that this contradiction could be explained by the fact that the addition "or an earlier date" in the first sentence of the provision was incorporated into the provision only at the end of the legislative process. According to the Commission's original Proposal of 22 October 2009, the transitional provision was supposed to contain a provision for a fixed reference date. The words "or an earlier date" were not inserted into the first sentence until Position (EU) no. 7/2013 of the Council at first reading on 6 June 2013 (OJ C 179 E p. 27). At that time, it is argued, the legislature neglected to revise the provision of the second sentence accordingly. On this interpretation, the second sentence is only a "catch-all provision" against the eventuality that the Member States had not transposed the new Directive before 20 July 2015 or did not declare the new law applicable to applications lodged before that time. Accordingly, for applications lodged before 20 July 2015, a national provision is in conformity with EU law if it meets the requirements of either the new or the old Directive.

25 The Senate cannot adhere to its previous jurisprudence without a clarification of the interpretation of the transitional provision, which it seeks from the Court of Justice in subquestion 1 of referred question 1. In the event that the interpretation last described above proves to be substantially correct, the further question arises as to whether the national provisions that transpose Directive 2013/32/EU can include all applications lodged before 20 July 2015, or only those that were lodged after the entry into force of the provision of national law transposing the new Directive (subquestion 2 of referred question 1). If the legal provision adopted in transposition of Directive 2013/32/EU must already be in force at the date when the application for international protection is lodged in order for the new provision to apply to the application, the claimant's application for asylum would not be inadmissible under section 29 (1) no. 2 AsylG. That application was lodged in November 2013, while section 29 (1) no. 2 AsylG did not enter into force until August 2016. If the date of transposition in national law is not the defining factor, however, the claimant's application is inadmissible under section 29 (1) no. 2 AsylG (unless something different proceeds from the answers to referred questions 2 or 3).

26 (2) If article 52 (1) of Directive 2013/32/EU does not preclude the application of section 29 (1) no. 2 AsylG, there is furthermore a need to clarify whether the Member States may make use of a provision transposing article 33 (2) (a) of Directive 2013/32/EU without first clarifying whether an examination of the application must be refused because another country has international responsibility under the Dublin provisions. This is the concern in referred question 2. This question arises only if the Dublin provisions still apply after international protection has already been granted in the form of a subsidiary protection, which may be doubtful if, in the present case, the timing aspect must already be decided on the basis of the Dublin III Regulation (see referred question 5 below.).

27 Article 33 (1) of Directive 2013/32/EU provides that in addition to cases in which an application is not examined in accordance with Regulation (EU) No 604/2013, Member States are not required to examine whether the applicant qualifies for international protection in accordance with Directive 2011/95/EU where an application is considered inadmissible pursuant to this article. This argues that the Member States have a right to choose whether to reject an asylum application as inadmissible either because international responsibility lies elsewhere, or under article 33 (2) (a) of Directive 2013/32/EU, or that at any event there is no conflict between these two options for a decision because the Dublin III Regulation no longer applies after international protection has been granted.

28 (3) If, according to the results from referred questions 1 and 2, the application can be rejected as inadmissible in accordance with section 29 (1) no. 2 AsylG, transposing article 33 (2) (a) of Directive 2013/32/EU, because subsidiary protection was granted in Bulgaria, the further question arises as to whether this possibility is restricted by other provisions of EU law (article 4 and article 18 CFR, article 20 et seqq. of Directive 2011/95/EU) (referred questions 3 and 4).

29 The Common European Asylum System is founded on the principle of mutual trust among Member States. On that basis, the Court of Justice has held, concerning transfers under the Dublin II Regulation, that not every breach of individual provisions of asylum law is sufficient to prevent a transfer to the Member State primarily responsible. Otherwise the States' obligations under the Common European Asylum System would be deprived of their substance. However, EU law precludes an irrebuttable presumption that a country of destination for a transfer complies with fundamental rights of the European Union. The Member States are under an obligation not to carry out a transfer if substantial deficiencies are present. Such a case exists if the Member State in which the applicant resides cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in the country of destination seriously and demonstrably amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of article 4 CFR (CJEU, judgment of 21 December 2011 - C-411/10, C-493/10 [ECLI:EU:C:2011:865], N.S. - para. 78 - 94). This case-law was incorporated into the Dublin III Regulation's revision of the Dublin provisions, in article 3 (2) second subparagraph of the Dublin III Regulation.

30 There is a need for the Court of Justice to clarify whether, and if so, in what way, this case-law applies to those cases of secondary movement in which the applicants have already received protection status in another Member State and now lodge a further application for international protection. In specific terms, the applicant in the present case, after being granted subsidiary protection, seeks to enhance his protection by being granted refugee status in another Member State.

31 The first question to arise is, whether a rejection of the asylum application as inadmissible is precluded if the asylum procedure in the Member State where subsidiary protection was granted suffers from systemic deficiencies (referred question 3a). The situation in which the applicant finds himself here, however, is somewhat different than in the Dublin cases mentioned above: The reception conditions may remain without consideration because the applicant has already received subsidiary protection. It can also be left open whether a subsequent application for refugee status lodged in this situation would cause him in this regard to become - again - an "applicant" within the meaning of article 2 (b) of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast, OJ L 180 p. 96 - the Reception Conditions Directive) and whether this Directive therefore applies. This is because in any event, the applicant can already invoke - additionally, if necessary - his status as a beneficiary of subsidiary protection in the Member State that granted him that protection, as well as the legal position that proceeds from that status under Chapter VII in conjunction with article 20 (2) of Directive 2011/95/EU, which extends beyond the legal position granted during the procedure under the Reception Conditions Directive.

32 Consequently, only deficiencies in the asylum procedure per se are to be given consideration. These may lie in that the State that granted subsidiary protection (forseeably) denies the granting of refugee status - which is of greater value - in a manner that is to be regarded as a systemic deficiency, or that it gives no further examination to subsequent applications, despite the presence of new elements or findings which significantly add to the likelihood of the applicant qualifying as a refugee (see article 40 (3) of Directive 2013/32/EU). A subsequent application is therefore also to be assumed in a case like the present one, in which the applicant was granted subsidiary protection, but no more, in response to his previous application, with the implication that his further request to be granted refugee status has been denied. In this case as well, there is a "final decision (...) on a previous application" within the meaning of article 2 (q) of Directive 2013/32/EU (see also article 46 (1) (a) (i) and (2) first subparagraph of Directive 2013/32/EU). In any case, it is not firmly established that subsidiary protection status in Bulgaria would confer the same rights and benefits on a beneficiary of international protection as those offered by refugee status (see article 46 (2) second subparagraph of Directive 2013/32/EU). Given this background, the Senate wonders whether and under what conditions article 18 CFR in conjunction with article 78 TFEU might require a Member State to examine an application for international protection, contrary to a provision of national law transposing article 33 (2) (a) of Directive 2013/32/EU, if the applicant has already been granted subsidiary protection status in another Member State, but not refugee status.

33 Referred question 3b) is intended to clarify whether EU law requires an examination of the subsequent application of a person recognised as having subsidiary protection in another Member State, contrary to a provision of national law that transposes article 33 (2) (a) of Directive 2013/32/EU, if the living conditions for beneficiaries of subsidiary protection there breach article 4 CFR and/or article 3 ECHR, or do not suffice for the requirements of article 20 et seqq. of Directive 2011/95/EU below that threshold. The case-law of the Court of Justice has clarified that deportation to a country where the living conditions of beneficiaries of subsidiary protection are equivalent to inhuman or degrading treatment within the meaning of article 4 CRC and/or article 3 ECHR is ruled out (see, most recently CJEU, judgment of 16 February 2017 - C-578/16 [ECLI:EU:C:2017:127] - para. 59 et seqq.) However, this does not mean that the Member State in which the applicant is staying must, under these conditions, also examine the merits of a subsequent application.

34 In such a situation, an applicant who asserts new elements or findings within the meaning of article 40 (3) of Directive 2013/32/EU may have to wait for a long time for an examination of the question whether he or she now meets the requirements for refugee status, which has more favourable legal consequences. He or she could not reasonably be expected to (voluntarily) return to the Member State that granted subsidiary protection, and where he or she might lodge a subsequent application for the granting of refugee status. Thus, with regard to the desired upgrade, he or she would be in the situation of a "refugee in orbit". Although he or she could obtain lawful residence in Germany, because there is a deportation ban for the country of destination under section 60 (5) AufenthG in conjunction with article 3 ECHR (see also section 31 (3) first sentence AsylG, according to which in decisions on inadmissible asylum applications, it must still be determined whether the conditions of section 60 (5) or (7) AufenthG are met). This is because according to section 25 (3) first sentence AufenthG, a foreign national "should" be granted a residence permit if a deportation ban applies pursuant to section 60 (5) or (7) AufenthG. If necessary, this provision might be interpreted in conformity with EU law to mean that a residence permit must be granted. Recognised refugees, however, are granted a better legal position in Germany than is conferred by a residence permit under section 25 (3) first sentence AufenthG. A person who holds such a residence permit does not have access to all rights guaranteed under article 20 et seqq. of Directive 2011/95/EU. The Senate therefore considers it a matter of doubt and in need of clarification whether in such a situation article 18 CFR in conjunction with article 78 TFEU requires an examination of a subsequent application for a grant of refugee status, if the applicant submits new elements or findings within the meaning of article 40 (3) of Directive 2013/32/EU. Even if he or she does not assert a subsequent change in the factual situation, the question still arises as to whether EU law requires a repeated granting of subsidiary protection in Germany. Even if one were to assume that EU law requires that the rights and benefits associated with subsidiary protection status cannot practically be withheld from a person granted that status in a Member State, this does not necessarily require, when a return to that Member State cannot reasonably be expected, that an asylum procedure must be carried out once again with the goal of obtaining - again - protection in another Member State, with the associated duty to answer for the rights and benefits associated with a protection status. Instead, in these cases, the practical efficacy of the grant of protection might also be duly taken into account if the person concerned - so long as he or she cannot reasonably be expected to return to the Member State that granted him or her subsidiary protection - is to be treated in the Member State where he or she resides as a person with subsidiary protection, to the extent required by an interpretation of the provisions of national law on residence and social law in conformity with EU law. This would have the advantage that the person concerned would not be placed in a better position, but also not in a worse one, than he or she would be in if the Member State that granted him or her international protection had met the associated obligations under EU law. Furthermore, this would avert not only multiple recognitions of status, but also divergent decisions within the European Union, with all the associated undesirable consequences under EU law.

35 Different concerns might, however, apply if the living conditions in the Member State that granted subsidiary protection failed to meet the requirements of article 20 et seqq. of Directive 2011/95/EU in only a few points, without however breaching article 4 CFR and/or article 3 ECHR (referred question 3b) second indent). According to the case-law of the Court of Justice - codified in the Dublin III Regulation - only systemic weaknesses "which entail the risk of inhuman or degrading treatment within the meaning of article 4 CFR" are relevant in the Dublin procedure as well (see article 3 (2) second subparagraph of the Dublin III Regulation). A further lowering of this threshold would subvert the Common European Asylum System and the mutual trust that underlies it. For this reason, the Senate also has reservations about an (unqualified) affirmative answer to referred question 4: The provisions of the Qualification Directive for the form of international protection grant beneficiaries of subsidiary protection subsistence benefits that do not exceed the extent to which Member States grant such benefits to their own nationals (see articles 27, 29 (1) and (2), 30 and 32 of Directive 2011/95/EU). This means that EU law can, at best, require the examination of an application for repeated granting of refugee status in another Member State despite the inadmissibility under the national law of that state if the living conditions in the Member State which granted the applicant refugee status infringe article 4 CFR and/or article 3 ECHR (regarding the above-described issues, see also VGH Mannheim, decision of 15 March 2017 - A 11 S 2151/16 - referred question 4).

36 bb) If question 2 is to be answered in the negative, and the transitional provision in article 52 (1) of Directive 2013/32/EU does not preclude the application of section 29 (1) no. 2 AsylG, the Senate must further examine whether the primacy of the Dublin procedure (see section 29 (1) no. 1 AsylG) precludes a rejection of the asylum application under section 29 (1) no. 2 AsylG.

37 (1) This first of all presupposes that the Dublin provisions apply if an applicant has already been granted subsidiary protection in another Member State, and now lodges a subsequent application with the aim of granting refugee status. Here it must primarily be clarified whether the answer to this question in cases like the present one should be founded intertemporally on the Dublin III Regulation, or still on the Dublin II Regulation. Referred question 5a) is concerned with clarifying these questions.

38 According to the transitional provision in article 49 (2) of the Dublin III Regulation, the Dublin III Regulation is to apply to applications for international protection lodged as from the first day of the sixth month following its entry into force - i.e., as from 1 January 2014. Furthermore, from that date, it is to apply to any request to take charge of or take back applicants, irrespective of the date on which the application was lodged. For an application for international protection lodged before 1 January 2014, the responsible Member State is to be determined in accordance with the criteria of the Dublin II Regulation. In the present case, the asylum application was lodged in November 2013 - i.e., before the reference date of 1 January 2014. However, the request to take back was not addressed to Bulgaria until 22 January 2014. In this transitional case, the question arises to which extent the Dublin II Regulation should still be applied in determining responsibility, or whether the Dublin III Regulation should already apply. In the Senate's opinion, in any case, the assessment of the request to take back is to be governed by the provisions of the Dublin III Regulation (see BVerwG, judgment of 17 June 2014 - 10 C 7.13 - BVerwGE 150, 29 para. 27). The Senate is inclined to hold that this also extends to an associated transfer of responsibility - for example through the expiry of the time limit for an application or transfer. Only the Member State with original responsibility is still to be determined in accordance with the provisions of the Dublin II Regulation (see, e.g., VG Aachen, decision of 21 March 2014 - 4 L 53/14.A - (...) para. 17; dissenting opinion (...); VG Stuttgart, judgment of 28 February 2014 - A 12 K 383/14 - (...) para. 13).

39 On that assumption, here the Dublin III Regulation might already serve as a basis in deciding whether the Dublin provisions still apply in substantive terms if an applicant has already obtained subsidiary protection in another Member State, for the instant case concerns the possibility of a transfer that is associated with a procedure for taking back.

40 If the responsible Member State is to be determined solely on the basis of the Dublin II Regulation, there would be no doubt that a Dublin transfer would still come under consideration after subsidiary protection is granted (...). After all, according to article 2 (c) of that Regulation, an application for international protection under that Regulation related only to the granting of refugee status, without including subsidiary protection. According to article 16 (1) (e) of the Dublin II Regulation, the responsible Member State shall be obliged to take back, under the conditions laid down in article 20, a third-country national whose application it has rejected and who stays in the territory of another Member State without permission. Such a case for refusing an application exists if the applicant has received only subsidiary protection in the responsible Member State.

41 However, if the Dublin III Regulation governs in this regard, the Senate has doubts whether a Dublin transfer can still come under consideration after a grant of international protection, which now also includes subsidiary protection (see article 2 (b) and (f) of the Dublin III Regulation in conjunction with article 2 (b) and (h) of Directive 2011/95/EU). This question is controversial in the jurisprudence and among legal scholars. According to one opinion, the Dublin III Regulation still applied to a subsequent application in which a person entitled to subsidiary protection seeks the granting of refugee status. The application for international protection, on this reading, included not only subsidiary protection, but also recognition as a refugee, which is associated with further rights. The obligation under article 18 (1) (d) of the Dublin III Regulation to take back an applicant whose application has been rejected and who made an application in another Member State also included this group of persons. It is argued that the granting of (only) subsidiary protection was simultaneously associated with a rejection of refugee status (OVG Münster, judgment of 22 September 2016 - 13 A 2448/15.A - (...) para. 51 et seqq.; OVG Berlin-Brandenburg, judgment of 22 November 2016 - OVG 3 B 2.16 - (...) para. 21 et seqq.; (...)).

42 The contrary opinion (...) refers to the legal definitions in article 2 (c) and (f) of the Dublin III Regulation, which distinguish between an "applicant" and a "beneficiary of international protection". On this reading, in the event of a positive outcome of the asylum procedure, the Dublin III Regulation provided no obligation to take back equivalent to article 18 (1) (d) of the Dublin III Regulation. The interpretation that the applicability of the Dublin III Regulation ends upon the grant of any form of international protection may well be supported most of all by the fact that according to article 33 (2) (a) of Directive 2013/32/EU, now "in addition to cases in which an application is not examined", applications for international protection may - also - be considered inadmissible if another Member State has granted - only - subsidiary protection to the applicant. The simplifying effect intended with this provision would hardly be achieved if exercising this option would presume that responsibility must first be determined under the Dublin III Regulation (on this point see also referred question 2).

43 (2) In the event that the Dublin provisions still apply, the further question arises of whether Bulgaria still has the responsibility for examining the application, or whether responsibility has been transferred to Germany after Bulgaria refused a timely request to take back the claimant under the Dublin provisions, and Germany accepted this refusal (referred question 5b).

44 Bulgaria had original responsibility for examining the application for protection, because the claimant entered the EU irregularly through this Member State at a date not further identified after April 2012 (article 10 (1) of the Dublin II Regulation). Bulgaria's responsibility did not cease twelve months after the irregular border crossing, in accordance with article 10 (1) second sentence of the Dublin II Regulation, because within that period the claimant lodged his first application for asylum in Bulgaria (see article 5 (2) of the Dublin II Regulation). The question of whether Bulgaria's responsibility is precluded by systemic deficiencies in the asylum procedure there, which the Higher Administrative Court left aside, would not matter if Bulgaria's responsibility was transferred to Germany anyway in the further course of events. The Senate is inclined to hold that this is the case.

45 However, a transfer of responsibility does not result here from either a delayed submission of the request to take back, or an expiry of the transfer time limit. In the present proceedings, that situation is already governed by the Dublin III Regulation, in accordance with article 49 (2) first sentence of the Dublin III Regulation. Germany sent the Bulgarian authorities a request to take back in good time within the period under article 23 (2) of the Dublin III Regulation. As Bulgaria has refused a Dublin transfer, and instead has referred to an inter-state agreement on taking back, a transfer time limit could not begin to run, and therefore also could not expire. This is because the transfer time limit, under both the Dublin III Regulation and the Dublin II Regulation, is linked to the acceptance of a request to take charge (or take back) by the requested Member State.

46 Nevertheless, the Federal Office accepted Bulgaria's refusal. It did not initiate the optional conciliation procedure provided in article 37 of the Dublin III Regulation, or exercise the option provided in article 5 (2) of Commission Regulation (EC) No 1560/2003 of 2 September 2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ L 222 p. 3) for asking the requested Member State to re-examine the request. It is assumed among legal scholars that the final refusal of a request to take back by the requested Member State results in a responsibility of the requesting Member State ((...); dissenting opinion OVG Münster, judgment of 22 September 2016 - 13 A 2448/15.A - (...) para. 59 et seqq.). This is self-evident, if only for practical reasons, in cases where there is no reason to believe that another Member State has responsibility, because a Dublin transfer will be impossible for the foreseeable future in such a case, and the applicant can obtain a rapid decision on his or her application only in the requesting Member State. It would furthermore be hard to understand that article 5 of Regulation (EC) No 1560/2003 links the possibility of remonstration to a time limit, if the expiry of that time limit were not assumed to be associated with the responsibility of the requesting Member State. But because such a transfer of responsibility is not expressly regulated in the Dublin III Regulation (or earlier in the Dublin II Regulation), the Senate holds that this is a matter of doubt under EU law that must be finally clarified by the Court of Justice.

47 3. The referring court requests that the Court of Justice process the case in the expedited procedure under article 105 of the Rules of Procedure of the Court of Justice because the nature of the case requires that it be dealt with within a short time. The referred questions are related to the secondary movement of asylum seekers which is undesired under EU law and where Germany has been among the preferred destinations for quite some time. It must be expected that the Federal Office and the administrative courts currently have several thousand cases to handle where (at least in part) the questions raised must be answered and which cannot be finally decided in view of this request for a preliminary ruling. The problem of transfer that is foregrounded here is furthermore of significance in a great number of cases that have not yet been concluded. Increasing numbers of cases are reaching the courts in which applicants who are already the beneficiaries of international protection in one EU Member State now lodge a new application in Germany. There is a need for rapid clarification as to whether these can be rejected in application of a provision of national law transposing article 33 (2) (a) of Directive 2013/32/EU, if systemic deficiencies in the asylum procedure or unreasonable living conditions exist for beneficiaries of protection in the Member State that granted protection. If this clarification cannot be provided in the present proceedings and the other two proceedings referred by the Senate, further referrals to the Court of Justice must be expected.

48 For the special case group submitted here, of subsequent applications with the aim of "enhancing" the subsidiary protection granted, there is additionally a need for expeditious treatment in this specific case that is comparable to that in Dublin proceedings (see CJEU, decision of 15 February 2017 - C 670/16 [ECLI:EU:C:2017:120], Mengesteab). The Dublin system seeks to make it possible to determine rapidly the Member State responsible, so as to guarantee effective access to the procedures for granting international protection and not to compromise the objective of processing applications for international protection expeditiously (see CJEU, judgment of 16 February 2017 - C-578/16 - para. 57). Even if, in situations like the present one, the Dublin provisions on responsibility were no longer to apply, the claimant has a comparable interest in finding out quickly whether he can obtain an examination of his subsequent application in Germany, or only in Bulgaria, if the factual situation changes subsequently. He has already been waiting for this for more than three years now.

The claimant, a stateless Palestinian from Syria, contests the decision by the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, hereinafter Federal Office) pursuant to which he is not entitled to asylum because he entered Germany from a safe third country.

The claimant left Syria, together with his parents and siblings (the claimants in proceeding 1 C 5.19) in 2012 and entered Bulgaria. Him and his family was granted subsidiary protection there in February 2013. In November 2013, the claimant and his family entered the Federal Republic of Germany by way of Romania, Hungary and Austria, and lodged another application for asylum here on 29 November 2013.

On 22 January 2014, the Federal Office addressed a request to take back to the Bulgarian state refugee administration, which that authority refused in a letter dated 10 February 2014. Because subsidiary protection had already been granted to the claimant in Bulgaria, the provisions on taking back under the Dublin III Regulation did not apply. The competent Bulgarian authority was the Bulgarian border police.

By notice of 27 February 2014, the Federal Office found, without examining the substance of the asylum application, that the claimant was not entitled to asylum because he had entered from Bulgaria, a safe third country (no. 1), and ordered his deportation to Bulgaria (no. 2).

In response to the action filed against this notice, the Administrative Court (Verwaltungsgericht) dismissed the action. On appeal on points of fact and law by the applicant, the Higher Administrative Court (Oberverwaltungsgericht) annulled the deportation order to Bulgaria, but with regard to all other aspects dismissed the appeal. 

Following the appeal on points of law lodged by the claimant, the Senate, by decision of 23 March 2017 - 1 C 17.16 - (Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 158, 271), suspended the proceedings and requested a preliminary ruling from the Court of Justice of the European Union (CJEU, hereinafter Court of Justice) on questions concerning the interpretation of, inter alia, article 33 (2) (a), article 52 (1) of Directive 2013/32/EU and article 4 of the Charter of Fundamental Rights of the European Union (CFR). The Court of Justice ruled on these questions by judgment of 19 March 2019 - C-297/17, C-318/17, C-319/17 and C-438/17 [ECLI:EU:C:2019:219], Ibrahim et al. In a further decision issued in two other proceedings for the request of a preliminary ruling, the Court of Justice provided clarification on the interpretation of article 33 (2) (a) of Directive 2013/32/EU, which is also of significance in the present proceedings (CJEU, decision of 13 November 2019 - C-540/17 and C-541/17 [ECLI:EU:C:2019:964], Hamed et al. -).

The claimant's appeal on points of law met with success and led to the case being referred back to the Higher Administrative Court.

11 (...) The assumption of the Higher Administrative Court that the Federal Office's notice based on the national provisions on third countries, was lawful on the grounds that the Republic of Austria, through which the applicant entered the country, was a safe third country within the meaning of article 16a (2) first sentence of the Basic Law (GG, Grundgesetz) and section 26a (1) first sentence of the Asylum Act (AsylG, Asylgesetz), violates federal law (article 137 (1) no. 1 of the Code of Administrative Procedure (VwGO, Verwaltungsgerichtsordnung)). As a Member State of the European Union, Austria already fails to constitute a third country within the meaning of said provisions. In the absence of factual findings on the living conditions of recognised beneficiaries of protection in Bulgaria, the Senate cannot decide conclusively whether the contested notice can be re-interpreted as an inadmissibility decision under section 29 (1) no. 2 AsylG. The case must therefore be referred back to the Court of Appeal for a further inquiry into the facts (section 144 (3) first sentence no. 2 VwGO).

12 (...)

13 The subject matter of the appeal proceedings on points of law are only the findings made under no. 1 of the notice of the Federal Office of 27 February 2014, declaring that the claimant is not entitled to asylum on account of his entry from a safe third country. In the appeal proceedings on points of law, the deportation order is no longer subject matter of the dispute, since the Higher Administrative Court has set it aside and the judgment has become final and binding in this respect.

14 The Court of Appeal rightly held that the action for annulment brought by the claimant was admissible. Under the current legislation, the Federal Office's finding that the claimant is not entitled to asylum on account of his entry from a safe third country is equivalent to an inadmissibility decision under section 29 (1) no. 3 AsylG (see in more detail under 1.1) and is therefore to be challenged with the action for annulment (see Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgments of 14 December 2016 - 1 C 4.16 - BVerwGE 157, 18 para. 16 et seqq. and of 1 June 2017 - 1 C 9.17 - (...) para. 15).

15 1. The opinion of the Court of Appeal that the contested notice (no. 1) was lawful in application of section 26a (1) first and second sentence, section 31 (4) AsylG on the ground that the applicant entered Germany via Austria and thus from a safe third country within the meaning of article 16a (2) first sentence GG (section 26a (1) first and second sentence, section 31 (4) AsylG) violates federal law. The findings based on the national third-country provisions to the effect that the claimant is not entitled to asylum under sections 26a, 31 (4) first sentence AsylG on account of his entry from a safe third country is unlawful.

16 1.1. The contested decision is to be measured against the standard of section 29 (1) no. 3 AsylG, in the version of the Integration Act (Integrationsgesetz) of 31 July 2016 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 1939), which entered into force on 6 August 2016 during the appeal proceedings. This is because, at least since the insertion of this provision, an application for asylum with regard to a safe third country can no longer be rejected "only pursuant to section 26a AsylG", but only by way of an inadmissibility decision under section 29 (1) no. 3 (in conjunction with section 26a) AsylG, with due regard for the requirements stipulated therein. (...) This is already suggested by systematic interpretation. Section 29 (1) AsylG clearly serves to implement (by concentration) the (optional) grounds for inadmissibility laid down in Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ L 180 p. 60). (...) The requirement, previously stipulated in section 31 (4) first sentence AsylG, to find that the foreign national is not entitled to asylum when the asylum application is rejected solely on the basis of the provision on safe third countries (section 26a AsylG), has been deleted by the Integration Act. The reason given in the draft act is that this finding was no longer necessary; rather, the application was to be rejected as inadmissible under section 29 (1) no. 3 AsylG (Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 18/8615 p. 52). (...)

17 The applicability of section 29 (1) no. 3 AsylG to the present dispute is not precluded by the transitional provision in article 52 (1) of Directive 2013/32/EU. Under this provision, Member States shall apply the laws, regulations and administrative provisions referred to in article 51 (1) of the Directive to applications for international protection formally lodged after 20 July 2015 or an earlier date. Applications formally lodged before that date and procedures for withdrawing refugee status started before that date shall be governed by the laws, regulations and administrative provisions adopted pursuant to Directive 2005/85/EC. In the present case, the asylum application was lodged before 20 July 2015. However, the Court of Justice has interpreted this transitional provision in answering the question raised in the Senate's decision to request a preliminary ruling on article 33 (2) (a) of Directive 2013/32/EU (implemented by section 29 (1) no. 2 AsylG) as allowing a Member State (by virtue of the phrase "or an earlier date" in the first sentence) to provide for application, with immediate effect, of the national provision implementing article 33 (2) (a) of the Directive to asylum applications on which no legally binding decision has been made and which were lodged before 20 July 2015 and before the national provision entered into force (CJEU judgment of 19 March 2019 - C-297/17 et al. - para. 64 et seq, 69, 74). The requirements of legal certainty and equality before the law are safeguarded in Germany by section 77 (1) first sentence AsylG, which ensures that applications for international protection, which have been lodged in the course of the same period in German territory and on which no legally binding decision has been made at the time of the entry into force of section 29 (1) no. 2 AsylG, are examined in a predictable and uniform manner (CJEU, judgement of 19 March 2019 - C-297/17 et.al - para. 66 - 68). It follows from these statements that, in the present dispute, there are no objections under EU law to apply section 29 (1) no. 3 AsylG ratione temporis either.

18 1.2 Under section 29 (1) no. 3 AsylG, an application for asylum is inadmissible if a country that is willing to readmit the foreign national is regarded as a safe third country for that foreign national according to section 26a. These requirements are not met. As the Senate has already stated in its decision to request a preliminary ruling of 23 March 2017 - 1 C 17.16 - (BVerwGE 158, 271 para. 12 et seqq.), a safe third country within the meaning of this provision - according to the required interpretation in conformity with EU law - can only be a country that is not a Member State of the European Union.

19 (...)

20 (...)

21 2. The appeal judgment on points of fact and law also does not prove to be correct for other reasons (section 144 (4) VwGO). Prior to annulling an unlawful inadmissibility decision, it must be examined whether the possibility of re-interpreting such decision into another inadmissibility decision exists (see BVerwG, judgment of 15 January 2019 - 1 C 15.18 - BVerwGE 164, 179 para. 40). The Senate cannot conclusively answer this question on the basis of the available factual findings established by the competent court.

22 2.1 In any event, the contested third-country decision cannot be upheld on the basis of section 29 (1) no. 1 (a) AsylG or re-interpreted into a decision under this provision ("Dublin notice" due to the lack of international competence of the Federal Republic of Germany). Under the circumstances of the present case, only an inadmissibility decision pursuant to section 29 (1) no. 2 AsylG can possibly come into consideration. This follows from the answer given by the Court of Justice to referred question 2 by the Senate. As the asylum application was submitted before 1 January 2014, but the request to take back was lodged after that date, the Dublin III Regulation already applies to the request to take back according to article 49 (2) first sentence Dublin III Regulation. In such a case, a Member State cannot properly make a request of another Member State, within the procedures set out by that Regulation, that it takes charge or to take back a third-country national who has lodged an application for international protection in the former Member State after having been granted subsidiary protection in the latter Member State. An application for international protection can only be rejected by issuing an - in this respect more specific - inadmissibility decision under article 33 (2) (a) of Directive 2013/32/EU rather than by means of a transfer decision and not to examine the application under article 26 of the Dublin III Regulation (see CJEU, judgment of 19 March 2019 - C-297/17 et al. - para. 78 et seq.; see also decision of 5 April 2017 - C-36/17 [ECLI:EU:C:2017:273], Ahmed - para. 39 and 41).

23 2.2 The Senate cannot conclusively decide whether no. 1 of the notice can be upheld as an inadmissibility decision under section 29 (1) no. 2 AsylG. By virtue of this provision, an asylum application is inadmissible if another Member State of the European Union has already granted the foreign national international protection within the meaning of section 1 (1) no. 2 AsylG.

24 2.2.1 The unlawful third-country decision shall not be subject to judicial annulment in the ongoing court proceedings only, if it can be replaced by another - lawful - regulation by way of re-interpretation in accordance with section 47 Administrative Procedure Act (VwVfG, Verwaltungsverfahrensgesetz). (...)

25 2.2.2 On the basis of the factual findings established by the competent Court of Appeal, the Senate cannot conclusively decide whether the requirements for a re-interpretation of the contested regulation into an inadmissibility decision under section 29 (1) no. 2 AsylG are met.

26 In the case of re-interpretation (conversion), the regulation made in the administrative act is not merely based on a different legal basis but is replaced by another (lawful) regulation. Not only the authorities but also the administrative courts are authorised to do so - provided that the requirements of section 47 VwVfG are met. This does not involve a breach of the principle of effective legal protection. A re-interpretation is also still possible in appeal proceedings on points of law, provided that the factual findings of the competent court, binding on the Court deciding on appeals on points of law, are sufficient, the parties have been granted the right to be heard and that they are not impaired in their legal defence (BVerwG, judgement of 16 November 2015 - 1 C 4.15 - BVerwGE 153, 234 para. 30 with further references).

27 Pursuant to section 47 (1) VwVfG, an erroneous and therefore unlawful administrative act may be re-interpreted into a different administrative act when it has the same objective, could legally have been issued by the issuing authority using the procedures and form in fact adopted, and when the requirements for its issuance have been fulfilled. Pursuant to section 47 (2) VwVfG, this does not apply when the administrative act, into which the erroneous administrative act would have to be re-interpreted, would contradict the clearly recognisable intention of the issuing authority or when its legal consequences would be less favourable for the person concerned than those of the erroneous administrative act (first sentence). Furthermore, re-interpretation is impermissible when the withdrawal of the erroneous administrative act would not be possible (second sentence). Pursuant to section 47 (3) VwVfG, a decision that can only be taken as a non-discretionary one cannot be re-interpreted into a discretionary decision. Pursuant to section 47 (4) VwVfG, section 28 VwVfG shall apply mutatis mutandis.

28 According to this, there are no fundamental objections against the re-interpretation of a third-country decision into an inadmissibility decision under section 29 (1) no. 2 AsylG (a). Such re-interpretation is also not frustrated on the ground that section 29 (1) no. 2 AsylG would yet fail to apply to the present legal dispute ratione temporis for reasons of EU law having primacy (b). An inadmissibility decision under section 29 (1) no. 2 AsylG could have been lawfully issued by the issuing authority using the form and procedures in fact adopted (c). The formal requirements for the adoption of an inadmissibility decision are met (d). However, there is a lack of sufficient findings to assess whether the substantive requirements - to be complemented in application of the Court of Justice's case law in order to be in conformity with EU law - for issuing an inadmissibility decision under section 29 (1) no. 2 AsylG are met (e).

29 a) There are no fundamental objections against the re-interpretation of a third-country decision into an inadmissibility decision under section 29 (1) no. 2 AsylG. Both are in principle aimed at the same objective, namely rejecting to review the substance of the asylum application and the deportation of the claimant to Bulgaria (section 34a (1) first sentence and section 35 AsylG). In any case, the legal consequences of an inadmissibility decision under section 29 (1) no. 2 AsylG would not be less favourable to the claimant. Nor would the re-interpretation be contrary to the recognisable intention of the Federal Office to end the claimant's stay (if possible) without reviewing the substance of the asylum application. Both inadmissibility decisions are non-discretionary decisions. In any event, the parties have been aware of the possibility of a re-interpretation ever since the oral hearing of 23 March 2017 and the subsequent reference for a preliminary ruling to the Court of Justice (decision of the Senate of 23 March 2017 - 1 C 17.16 - BVerwGE 158, 271), so that they were able to prepare themselves for such re-interpretation in their legal defence.

30 b) Section 29 (1) no. 2 AsylG applies, ratione temporis, as the legal basis to the present legal dispute. Whether the substantive-law requirements for the issuance of the other administrative act within the meaning of section 47 (1) VwVfG are met, is assessed (...) on the basis of the point in time generally relevant for such an administrative act. Accordingly, the factual and legal situation at the time of the last oral hearing of the court responsible for finding the facts is in principle to be taken as a basis. However, section 29 (1) no. 2 AsylG, which only entered into force during the appeal proceedings on points of law, must be taken into account as, if the court responsible for finding the facts were to decide now, it would also have to take it into account pursuant to section 77 AsylG (...).

31 Nor does the transitional provision laid down in article 52 (1) of Directive 2013/32/EU preclude the application of section 29 (1) no. 2 AsylG to the asylum application lodged in this case before 20 July 2015. The Court of Justice has clarified this in response to the request for a preliminary ruling made by the Senate (see CJEU, judgment of 19 March 2019 - C-297/17 et al. - para. 64 et seq., 69, 74); reference is made to the above statements under 1.1 for more detailed reasons. (...)

32 c) An inadmissibility decision under section 29 (1) no. 2 AsylG could have been lawfully issued by the issuing authority - the Federal Office - using the form and procedures in fact adopted. Section 29 (2) first sentence AsylG obliges the Federal Office in procedural terms to interview the foreign national in person with regard to the reasons stipulated in subsection 1 no. 1 (b) to no. 4 prior to deciding on the admissibility of an asylum application. This provision implements article 34 (1) of Directive 2013/32/EU, which requires Member States to allow applicants to present their views with regard to the application of the grounds referred to in article 33 in their particular circumstances before the determining authority decides on the admissibility of an application for international protection. To that end, the Member States shall conduct a personal interview on the admissibility of the application. It was also in such proceedings involving a personal interview that the contested third-country decision was issued.

33 d) The formal requirements for the issuance of an inadmissibility decision are met (section 47 (1) VwVfG at the end). In the result, the requirements of section 29 (2) first sentence AsylG were complied with in this case, irrespective of the fact that the ground of inadmissibility in question did not yet apply at the time of the hearing. It is true that the Court of Appeal has not made any findings in this regard and merely referred (in another context) to the minutes of the personal interview on 2 December 2013. The Senate may, however, independently evaluate the minutes of the interview - contained in the files of the administration - in preparation of the hearing held in accordance with section 25 Asylum Procedure Act (AsylVfG, Asylverfahrensgesetz), the recorded course of which is not disputed by any of the parties. The Court of Appeal has not made any factual findings to the contrary, which would in principle be binding on the Court deciding on appeals on points of law pursuant to section 137 (2) VwGO (see BVerwG, judgment of 21 November 2017 - 1 C 39.16 - BVerwGE 161, 1 para. 35). It is apparent from those minutes that the claimant was heard in relation to an inadmissibility decision in substance in a manner just sufficient to comply with the legal requirements.

34 e) Whether the substantive-law requirements for issuing an inadmissibility decision under section 29 (1) no. 2 AsylG are met, cannot be conclusively assessed on the basis of the factual findings made by the Court of Appeal which are binding on the Senate.

35 aa) Pursuant to section 29 (1) no. 2 AsylG, an application for asylum is inadmissible if another Member State of the European Union has already granted the foreign national international protection within the meaning of section 1 (1) no. 2 AsylG; this also applies to subsidiary protection within the meaning of Directive 2011/95/EU. Those requirements are met in the present case since, according to the factual findings of the lower court, which are not challenged by procedural complaints and are therefore binding on the Senate pursuant to section 137 (2) VwGO, the claimant was granted subsidiary protection in Bulgaria before continuing his journey to Germany.

36 bb) If the written requirements of section 29 (1) no. 2 AsylG are therefore met, an inadmissibility decision under this provision may nevertheless be exceptionally precluded under the case law of the Court of Justice for reasons of EU law having primacy. This is the case where the living conditions which would await the applicant and/or claimant as a recognised beneficiary of protection in the other Member State would expose him or her to a serious risk of suffering inhuman or degrading treatment within the meaning of article 4 CFR. Under these circumstances, Member States are prohibited from exercising the power conferred by article 33 (2) (a) of Directive 2013/32/EU to reject an application for international protection as inadmissible on the ground that the applicant has already been granted international protection by another Member State (see now expressly CJEU, decision of 13 November 2019 - C-540/17 et al. - para. 35; see also judgment of 19 March 2019 - C-297/17 et al. - para. 88). It is thus clarified that breaches of article 4 CFR in the Member State where protection is otherwise granted must not only be taken into account when reviewing the lawfulness of a deportation warning but already result in the unlawfulness of the inadmissibility decision.

37 In response to the request by the Senate, the Court of Justice has, in the "Ibrahim" judgment - based on the "Jawo" judgment of the same day - also specified in more detail the standard for a violation of article 4 CFR by the living conditions in the country granting protection. According to this, deficiencies, which may be systemic or generalised or which may affect certain groups of people, are to fall within the scope of article 4 CFR if they attain a particularly high level of severity, which depends on all the circumstances of the case and which would be attained where the indifference of the authorities of a Member State would result in a person wholly dependent on State support finding himself or herself, irrespective of his or her wishes and his or her personal choices, in a situation of extreme material poverty that does not allow him or her to meet his or her most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that undermines his or her physical or mental health or puts him or her in a state of degradation incompatible with human dignity. That threshold cannot therefore cover situations characterised even by a high degree of insecurity or a significant degradation of the living conditions of the person concerned, where they do not entail extreme material poverty placing that person in a situation of such gravity that it may be equated with inhuman or degrading treatment (see CJEU, judgments of 19 March 2019 - C-297/17 et al. - para. 89-91 and - C-163/17 [ECLI:EU:C:2019:218], Jawo - para. 91-93; decision of 13 November 2019 - C-540/17 et al. - para. 39).

38 The mere fact that the living conditions in the Member State which granted international protection do not comply with the provisions of Chapter VII of the Qualification Directive cannot, in view of the fundamental importance of the principle of mutual trust, prevent the Member States from exercising the option granted by article 33 (2) (a) of Directive 2013/32/EU as long as the severity threshold of article 4 CFR, as described above, is not exceeded (CJEU, judgment of 19 March 2019 - C-297/17 et al. - para. 92). Nor does the fact that beneficiaries of subsidiary protection in the Member State which has granted the applicant such protection receive no or markedly inferior subsistence benefits in comparison to other Member States though they are not treated differently from nationals of that Member State, in itself preclude the rejection of a (renewed) application for international protection as inadmissible (CJEU, judgment of 19 March 2019 - C-297/17 et al. - para. 93 et seq.) Systemic deficiencies in the asylum procedure itself may justify infringement proceedings against the Member State having granted subsidiary protection, but likewise do not prevent the other Member States from exercising the option to reject a new application as inadmissible (see CJEU, judgment of 19 March 2019 - C-297/17 et al. - para. 95-100).

39 Based on these standards, the Senate cannot conclusively decide on the question of whether an inadmissibility decision under section 29 (1) no. 2 AsylG as an exception is unlawful in this case on the grounds that the living conditions for persons entitled to subsidiary protection in Bulgaria amount to inhuman or degrading treatment within the meaning of article 4 CFR. This is because the Court of Appeal - based on its different legal approach, consistently - has not made any factual findings on the living conditions of beneficiaries of subsidiary protection in Bulgaria. The annulment of the deportation order was not based on the assumption that these persons had to face a life of extreme material poverty in Bulgaria, which may be equated with inhuman or degrading treatment, but on the fact that it was not clear whether Bulgaria's willingness to take back persisted.

40 However, it cannot be excluded from the outset that the living conditions for recognised beneficiaries of subsidiary protection in Bulgaria may be equated with inhuman or degrading treatment within the meaning of article 4 CFR. Here, the particular situation of the person concerned must also be taken into account. The claimant alleged that he had received "very bad" treatment in Bulgaria and that he was particularly vulnerable because he was severely traumatised and required specialist medical treatment. Bulgaria is one of the Member States where the question of a situation of extreme material poverty in breach of article 4 of the CFR is regularly addressed in the jurisprudence of the courts responsible for finding the facts at least in some detail, although, since the Court of Justice's "Ibrahim" and "Jawo" judgments have become known, the result has regularly been that the high severity threshold required was not met (...). The judicial obligation to assess, in line with the aforementioned requirements, on the basis of information that is objective, reliable, specific and properly updated and having regard to the standard of protection of fundamental rights guaranteed by EU law, whether there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people in Bulgaria, that would expose the claimant to a risk of extreme material poverty in violation of article 4 of the CFR (see CJEU, judgment of 19 March 2019 - C-297/17 et al. - para. 88 et seq.) is a task for the courts responsible for finding the facts. The legal dispute must therefore be referred back to the Court of Appeal for further inquiry into the facts (section 144 (3) first sentence no. 2 VwGO).

41 3. (...)