The claimant, who was granted refugee status in Italy and who was issued a travel document for refugees valid until February 2015 challenges the determination by means of a notice of 18 February 2013 by the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, hereinafter Federal Office), which was made without any prior personal interview, that he was not entitled to asylum because he entered Germany from a safe third country.

The Administrative Court (Verwaltungsgericht) dismissed the action filed against this notice. In its judgment, the Higher Administrative Court (Oberverwaltungsgericht) annulled the deportation order to Italy that was concurrently issued by the Federal Office, but with regard to all other aspects dismissed the appeal. In the view of the Court, the declaration was correct since the claimant entered the federal territory from a safe third country within the meaning of article 16a (2) first sentence of the Basic Law (GG, Grundgesetz). In Italy, the claimant was not at risk of inhuman or degrading treatment within the meaning of article 3 of the European Convention on Human Rights (ECHR).

Based on the claimant's appeal on points of law, the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) submitted a request for a preliminary ruling to the Court of Justice of the European Union (CJEU, hereinafter Court of Justice) on the question, among other things, as to whether the fact that the failure to conduct a personal interview is irrelevant is compatible with Directive 2013/32/EU. Upon this request, the Court of Justice held that articles 14 and 34 of Directive 2013/32/EU must be interpreted as precluding national legislation under which failure to comply with the obligation to give an applicant for international protection the opportunity of a personal interview before the adoption of an inadmissibility decision on the basis of article 33 (2) (a) of Directive 2013/32/EU does not lead to that decision being annulled and the case being remitted to the asylum authority, unless that legislation allows the applicant, in the judicial proceedings against that decision, to set out all the circumstances mitigating against a decision of inadmissibility in a personal interview which complies with the applicable conditions and fundamental guarantees listed in article 15 of Directive 2013/32/EU and, even having regard to those submissions, no other decision can be taken.

The claimant's appeal on points of law was successful. The Federal Administrative Court amended the judgments of the lower instances and annulled the contested declaration of the Federal Office.

7 (...) The assumption of the Higher Administrative Court that the Federal Office's decision based on the application of the national provisions on third countries was lawful violates section 29 (1) no. 3 of the Asylum Act (AsylG, Asylgesetz). The appeal judgment does not prove to be correct within the meaning of section 144 (4) of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung) for other reasons either since a re-interpretation of this decision as an inadmissibility decision pursuant to section 29 (1) no. 2 AsylG is not possible since the procedural requirements stipulated in section 29 (2) first sentence AsylG are not met. The action is admissible (1.) and well-founded (2.).

8 1. The action, which is only directed against the declaration that the claimant is not entitled to asylum on account of his entry from a safe third country, is admissible as an action for annulment within the meaning of section 42 (1) first alternative VwGO. According to the applicable law, this declaration is to be regarded as a decision on the inadmissibility of the asylum application under section 29 (1) no. 3 AsylG, which can only be challenged by means of an action for annulment (see BVerwG, judgment of 20 May 2020 - 1 C 34.19 [ECLI:DE:BVerwG:2020:200520U1C34.19.0] - (...) para. 10 with further references).

9 Also, the claimant has the necessary legal interest in bringing proceedings. Regardless of the question as to whether the action could improve his legal position in the event that the responsibility for issuing the travel document for refugees has been transferred to the Federal Republic of Germany, as asserted by him, a question that does not need to be clarified in this context, he has a recognised legal interest in bringing proceedings simply because it is neither obvious nor undisputed whether the requirements for such a transfer of responsibility are met.

10 2. The action is also well-founded. The decision justified by the Federal Office with the application of the national provisions on third countries is unlawful because it is not covered by section 29 (1) no. 3 AsylG which is the legal basis currently applicable to this decision (2.1). Nor may it be re-interpreted as an inadmissibility decision under section 29 (1) no. 2 AsylG since the necessary procedural requirements are not met (2.2). However, a potential transfer of responsibility for issuing the travel document for refugees does not prevent such an inadmissibility decision (2.3).

12 2.1 The declaration that the claimant has no right of asylum due to his entry from a safe third country, which the Federal Office still bases on the (national) third-country provision as contained in § 26a AsylG, is unlawful. According to currently applicable law, it must be reviewed based on the provision in section 29 (1) no. 3 (in conjunction with section 26a) AsylG that entered into force during the appeal proceedings on points of fact and law. This is because, at least since the insertion of this provision, an application for asylum with regard to a safe third country can now only be rejected by way of an inadmissibility decision with due regard for the requirements stipulated therein. (...)

13 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 AsylG. These requirements are not met here 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 (BVerwG, judgments of 21 April 2020 - 1 C 4.19 - (...) para. 18 et seqq. and of 17 June 2020 - 1 C 35.19 - (...) para. 12, each with further references).

14 2.2 The appeal judgment on points of fact and law also does not prove to be correct for other reasons (section 144 (4) VwGO). Admittedly, pursuant to section 47 of the Administrative Procedure Act (VwVfG, Verwaltungsverfahrensgesetz) an erroneous and therefore unlawful administrative act may be re-interpreted into a different administrative act (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 (b); however, an inadmissibility decision under section 29 (1) no. 2 AsylG could not have been lawfully issued by the Federal Office using the procedures in fact adopted (c).

15 a) An unlawful inadmissibility decision shall not be subject to annulment in court proceedings only, if it can be replaced by another - lawful - regulation by way of re-interpretation in accordance with section 47 VwVfG (see BVerwG, judgments of 21 April 2020 - 1 C 4.19 - (...) para 24 et seqq. with further references and of 17 June 2020 - 1 C 35.19 - (...) para 19). Here, as a legal basis for an inadmissibility decision, only section 29 (1) no. 2 AsylG can come into consideration. According to this provision, an application for asylum is inadmissible if another EU Member State has already granted the foreign national international protection.

16 b) 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 (see BVerwG, judgments of 21 April 2020 - 1 C 4.19 - (...) para. 29 et seqq. and of 17 June 2020 - 1 C 35.19 - (...) para. 16 et seq. (...)). (...)

17 c) A corresponding re-interpretation as an inadmissibility decision under section 29 (1) no. 2 AsylG is precluded by the fact that the procedural requirements that had to be observed under section 47 (1) VwVfG at the End for issuing an inadmissibility decision under section 29 (1) no. 2 AsylG are not met (aa) and this procedural defect which has also not been remedied in the meantime pursuant to section 45 (1) no. 3 VwVfG in conjunction with (2) VwVfG (bb) is not irrelevant under section 46 VwVfG (cc).

18 aa) Pursuant to article 14 (1) first sentence of Directive 2013/32/EU, the applicant shall be given the opportunity of a personal interview on his or her application for international protection with a person competent under national law to conduct such an interview. According to article 34 (1) of Directive 2013/32/EU, Member States shall allow applicants to present their views with regard to the application of the grounds referred to in article 33 of Directive 2013/32/EU in their particular circumstances before the asylum authority decides on the admissibility of an application for international protection. To that end, Member States are to conduct a personal interview on the admissibility of the application. In implementation of that regulation, section 29 (2) first sentence AsylG provides that the Federal Office interviews the foreign national in person with regard to the reasons stipulated in section 29 (1) no. 1 (b) to no. 4 AsylG prior to deciding on the admissibility of an asylum application (BVerwG, judgment of 21 April 2020 - 1 C 4.19 (...) para. 32). Contrary to section 29 (2) first sentence AsylG, the claimant was not interviewed in person in the administrative procedure concerning the issuance of an inadmissibility decision under section 29 (1) no. 2 AsylG.

19 bb) This procedural defect was not remedied pursuant to section 45 (1) no. 3 in conjunction with (2) VwVfG in the court asylum proceedings until the conclusion of the proceedings before the court responsible for finding the facts. According to national law, such a defect may only be remedied - also during court proceedings - by the authority itself; it must conduct the interview subsequently and critically reconsider its original decision in the light of the results of this interview (see, for example, BVerwG, judgment of 17 December 2015 - 7 C 5.14 [ECLI:DE:BVerwG:2015:171215U7C5.14.0] - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 153, 367 para. 17 with further references). It has neither been established by the Court of Appeal nor asserted by the defendant that his had occurred. The failure to comply with the obligation to conduct a personal interview cannot be compensated by the opportunity to set out in writing reasons for protection in the court asylum proceedings or by the obligation on the asylum authority and on the court to investigate all of the relevant facts ex officio (CJEU, judgment of 16 July 2020 - C-517/17 [ECLI:EU:C:2020:579], Addis - para. 71).

20 cc) The failure to conduct a personal interview with the claimant is not irrelevant under section 46 VwVfG either. Even though the provision is applicable in principle ((1)) and its requirements are met ((2)); its application in the present procedure was not compatible with EU law ((3)).

21 (1) Re-interpretation serves to render an additional administrative procedure unnecessary for reasons of procedural effectiveness and to ensure the continued existence of the erroneous administrative act (see Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 7/910 p. 66). For this purpose, it legitimises the changed regulatory content of the erroneous administrative act. In light of the purpose of section 47 VwVfG to achieve an effective procedure, it is consistent that the fact that the procedural requirement that was not observed is irrelevant leads to the re-interpreted administrative act no longer being able to be annulled (...).

22 (2) According to section 46 VwVfG, an application for annulment of an administrative act which is not invalid under section 44 VwVfG cannot be made solely on the ground that the act came into being through the infringement of regulations governing procedure, form or local competence, where it is evident that the infringement has not influenced the decision on the matter. It is not possible to establish this condition - obvious lack of a causal link between the procedural defect and the decision on the matter - in the present case based on the interpretation of the relevant requirements under EU law by the Court of Justice.

23 (a) In principle, it must be assumed under national law in non-discretionary decisions, such as the inadmissibility decision under section 29 (1) no. 2 AsylG, that a defect due to failure to conduct a personal interview with the applicant cannot have an impact on the final outcome (see BVerwG, decision to suspend the proceedings and to request a preliminary ruling of 27 June 2017 - 1 C 26.16 - (...) para. 42). However, one may not deny the relevance of the personal interview by the authority required by Directive 2013/32/EU for the final outcome, when implementing the preliminary ruling of the Court of Justice obtained by the Senate (...). In detail, the Court of Justice gave the following specific reasons for this:

24 Under EU law, one may only make use of an exclusion of the right to annulment under national law due to irrelevance only if and insofar as this does not render the exercise of the rights awarded by the EU legal order, namely the right to a personal interview in the present case, impossible or excessively difficult in practice (principle of effectiveness) (CJEU, judgment of 16 July 2020 - C-517/17, Addis - para. 57).

25 While there is no conflict between section 46 VwVfG and the principle of equivalence since it also applies in comparable cases that have to be assessed based on national law alone (CJEU, judgment of 16 July 2020 - C-517/17, Addis - para. 58), the fundamental importance that the issuer of the Directive attributed both to the personal interview by the asylum authority equipped with special resources and expert personnel and to ensuring compliance with the specific conditions and guarantees of article 15 (2) and (3) of Directive 2013/32/EU for a fair asylum procedure according to the rule of law in this regard, must be noted when assessing the compatibility of section 46 VwVfG with the principle of effectiveness (CJEU, judgment of 16 July 2020 - C-517/17, Addis - para. 59, 61 and 64 et seqq.). It would be incompatible with the effectiveness of articles 14, 15 and 34 of Directive 2013/32/EU, if a decision, which the asylum authority adopted without complying with the obligation to give the foreign national the opportunity of a personal interview regarding his or her application for international protection, would be upheld in the court asylum proceedings without the administrative court itself conducting an interview with the applicant in accordance with the conditions and fundamental guarantees applicable in the individual case (CJEU, judgment of 16 July 2020 - C-517/17, Addis - para. 68). The application of section 46 VwVfG is therefore only compatible with articles 14 and 34 of Directive 2013/32/EU if the foreign national had an opportunity in the court asylum proceedings to set out all the circumstances mitigating against a decision of inadmissibility in a personal interview which complies with the applicable conditions and fundamental guarantees listed in article 15 of Directive 2013/32/EU and, even having regard to those submissions, no other decision can be taken in the case (CJEU, judgment of 16 July 202 - C-517/17, Addis - para. 74). If the court considers that the foreign national was not or cannot be guaranteed that opportunity in the court asylum proceedings, it must annul the inadmissibility decision (CJEU, judgment of 16 July 2020 - C-517/17, Addis - para. 73). The questions as to which of the conditions and fundamental guarantees in article 15 Directive 2013/32/EU must be applied to a foreign national (CJEU, judgment of 16 July 2020 - C-517/17, Addis - para. 67 et seq.) and whether they were observed, must be answered taking all circumstances of the individual case into account.

26 (b) It is at the broad procedural discretion of the court responsible for finding the facts that is only subject to limited judicial review, whether it obliges the Federal Office to interview the claimant in the course of the court asylum proceedings in person, to take a decision on the question whether the challenged decision will be maintained and to introduce this decision into the proceedings or whether it conducts the personal interview of the claimant itself or whether it annuls the challenged notice of the Federal Office thereby giving the Federal Office the opportunity to take a new decision on the application for asylum after a personal interview in the course of the administrative procedure. When exercising its discretion in accordance with legal obligation, the court has to consider both the concentration and acceleration principle applicable in the asylum procedure as well as effective proceedings while at the same time taking account of the length of the procedure to date as well as any expected increased need to clarify the facts of the case.

27 If the court exercises its discretion such that it conducts the personal interview of the claimant itself, it has to conduct this interview in particular in accordance with article 15 (2) of Directive 2013/32/EU under conditions that ensure appropriate confidentiality both in fact and also legally. Appropriate confidentiality is ensured if the personal interview is performed either within the framework of a meeting to discuss the factual and legal situation of the case prior to the oral hearing within the meaning of section 87 (1) second sentence no. 1 VwGO or as part of the taking of evidence prior to the oral hearing if the participating claimant is questioned by the commissioned judge pursuant to section 96 (2) VwGO, (...). The public is not admitted to these sessions since the principle of public access to proceedings stipulated in section 55 VwGO in conjunction with section 169 (1) first sentence of the Courts Constitution Act (GVG, Gerichtsverfassungsgesetz) only applies to the oral hearing before the adjudicating court (BVerwG, decision of 8 September 1988 - 9 CB 38.88 - (...)). However, appropriate confidentiality is ensured also if the court excludes the public from the oral hearing. Section 55 VwGO in conjunction with section 171b (1) first sentence GVG places this exclusion at the discretion of the court in as far as it is foreseeable in the actual case (Federal Court of Justice (BGH, Bundesgerichtshof) judgment of 18 September 1981 - 2 StR 370/81 - (...)) that circumstances from the private sphere of a party to the proceedings are mentioned, the public discussion of which would violate legitimate interests. A legitimate confidentiality interest must be acknowledged, for instance, in the case of matters from the private sphere that are not readily accessible by third parties and the public discussion of which would violate overriding legitimate interests of the claimant (see BGH, judgment of 18 September 1981 - 2 StR 370/81 - (...)). This include especially family, relationships and sexual life, health status as well as ideology, religious and political views, i.e. circumstances that are not readily accessible to an uninvolved third party and deserve protection from outsiders gaining insight (...). Excluding the public is not possible under section 55 VwGO in conjunction with section 171b (1) second sentence GVG if there is an overriding interest in public discussion of these circumstances. The fundamental importance assigned to the confidentiality of the personal interview (CJEU, judgment of 16 July 2020 - C-517/17, Addis - para. 65 et seq.) is usually justification for public control of the judiciary as a protected interest stepping back (BVerwG, decision of 6 March 2019 - 6 B 135.18 [ECLI:DE:BVerwG:2019:060319B6B135.18.0] - (...) para. 50) for the time it takes to remedy the failure to conduct the personal interview in court asylum proceedings. According to section 55 VwGO in conjunction with section 171b (3) first sentence GVG, the public must be excluded if the requirements of section 171b (1) GVG are met and the claimant applies for such exclusion. However, the claimant is free to voluntarily, expressly and unequivocally waive the confidentiality requirement or to object to the exclusion of the public ordered by the court in accordance with section 55 VwGO in conjunction with section 171b (4) GVG. The fact of a separate personal interview and the circumstance that it was conducted taking the applicable conditions and fundamental guarantees of article 15 of Directive 2013/32/EU into account, has to be expressly recorded in the minutes of the hearing or session.

28 (c) In the case in dispute, the requirements presented above, under which section 46 VwVfG can only be applied, are not met.

29 It is not evident from the minutes of the public hearings of the Administrative Court of 15 April 2013 and of the Higher Administrative Court of 19 May 2019 that the claimant was given the opportunity in the court asylum proceedings to set out all the circumstances mitigating against the decision in a personal interview which complies with the applicable conditions and fundamental guarantees listed in article 15 of Directive 2013/32/EU. The mere possibility, one that can be assumed, for the claimant who was present in each of the oral hearings to rise to speak on his own initiative does not meet the - more far-reaching - requirements concerning a personal interview nor does the fact that no listeners were present ensure the confidentiality of such interview. Therefore, the challenged decision must be annulled and the Federal Office must be given the opportunity to decide on the asylum application of the claimant again - after an interview that is now compatible with EU law.

30 2.3 From a substantive point of view, the Senate additionally points out that a transfer of responsibility for issuing the travel document for refugees to the Federal Republic of Germany based on article 2 of the European Agreement on Transfer of Responsibility for Refugees (Europäisches Übereinkommen über den Übergang der Verantwortung für Flüchtlinge) of 16 October 1980 <European Treaty Series no. 107, Federal Law Gazette (BGBl., Bundesgesetzblatt) 1994 II p. 2645> that specifies the transfer of responsibility provided for in article 28 in conjunction with section 11 of the Annex to the Convention relating to the Status of Refugees of 28 July 1951 (hereinafter Geneva Refugee Convention) <BGBl. 1953 II p. 559 and 1954 II p. 619> - as asserted by the claimant and disputed by the defendant - does not prevent a rejection of the asylum application based on section 29 (1) no. 2 AsylG. Rather, the lawfulness of an inadmissibility decision under section 29 (1) no. 2 AsylG would remain unaffected by a corresponding transfer of responsibility.

31 Section 29 (1) no. 2 AsylG is based on the consideration that it is not necessary to decide on the merits of the asylum application filed in the federal territory again since the responsible Member State is granting protection. Like article 33 (2) (a) of Directive 2013/32/EU, the provision is based on the assumption that the other Member State continues to be the Member State responsible for the refugee or will be the Member State responsible for the refugee again and affords the refugee protection in the exercise of its responsibility. To use this assumption as the starting point would not be justified only if it is proven that the treatment of persons entitled to international protection in the other Member State exceptionally fails to comply with the requirements of the Charter of Fundamental Rights of the European Union (CFR) (CJEU, decision of 13 November 2019 - C-540/17 et al. [ECLI:EU:C:2019:964], Hamed, Omar - para. 41). If there is a serious risk of the refugee being subjected to an inhuman or degrading treatment breaching article 4 CFR when being transferred to the other Member State, another asylum procedure must be conducted in the federal territory in order to ensure that the foreign national is able to make use of his or her refugee status and the rights associated with this status in the federal territory as well (CJEU, decision of 13 November 2019 - C-540/17 et al., Hamed, Omar - para. 42).

32 Contrary to the cases where there is an imminent risk in the sense of article 4 CFR, it is not necessary to conduct another asylum procedure in the federal territory in cases where there is a transfer of responsibility for the refugee under the European Agreement on Transfer of Responsibility for Refugees. It is true that the Geneva Refugee Convention essentially grants refugees a national refugee status and not an international refugee status that is effective in all state parties to the Convention (BVerwG, judgment of 29 April 1971 - 1 C 42.67 - BVerwGE 38, 87 <89 et seq.>) and a state is neither bound under international law by the decision of another state to grant refugee status (Federal Constitutional Court (BVerfG, Bundesverfassungsgericht), decision of 14 November 1979 - 1 BvR 654/79 - Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts 52, 391 <404>) nor under EU law (...), which is why the Federal Republic of Germany only attributes legal effects in the federal territory to such a decision to a limited extent (see section 60 (1) second sentence in conjunction with the first sentence of the Residence Act (AufenthG, Aufenthaltsgesetz)). However, with the transfer of responsibility for issuing the travel document the responsibility for the refugee also passes from the state that granted the refugee status to the state where the refugee has lawfully settled, such that the decision of the initial state to grant refugee status continues to be effective in the other state (BT-Drs. 13/4948 p. 11). According to section 60 (1) third sentence AufenthG, which exempts the cases of section 60 (1) second sentence AufenthG from an asylum procedure, the refugee is not entitled to be granted refugee status again. In principle, an application filed regardless of this is - in compatibility with article 33 (2) (a) Directive 2013/32/EU - inadmissible pursuant to section 29 (1) no. 2 AsylG (BVerwG, judgment of 17 June 2014 - 10 C 7.13 - BVerwGE 150, 29 para. 29).